TMI Blog2023 (2) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-D by the Commissioner was illegal and also challenging the vires of section 9-D of the Excise Act - the appeals carried to this Court by the appellants from the orders of the Tribunal confirming the demands against the appellants also stand dismissed. We are, therefore, left to wonder in which proceedings would the principles and prerequisites and/or the parameters of the conditions precedent in section 9-D, laid down by the High Court, could at all be applied. Even if section 9-D were intra vires, whether the parameters thereof were completely ignored by the excise authorities? - HELD THAT:- With the final decision on all the appeals arising from the orders of the Tribunal being rendered against the appellants, there is no pending lis where the principles and conditions precedent could be applied. The endeavour of the appellants to have these appeals argued before us is, therefore, of purely academic interest and would not serve any real purpose - While dismissing the civil appeals, we endorse the views of the High Court insofar as it spurned the challenge of the appellants to the constitutional validity of section 9-D of the Excise Act. For unnecessarily protracting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-requisites laid down by the High Court for invocation of section 9-D vis- -vis the appellants case could not have been left undecided. 4. According to Mr. Bagaria, the principles laid down by the High Court in the impugned judgment ought to have been applied to test the legality and correctness of the impugned action of the department and there being apparent breach of such principles at the end of the department, the High Court committed an error of law in not deciding the other issues raised in the writ petitions. In other words, according to Mr. Bagaria, the High Court could not have stopped at deciding the issue of vires of section 9-D by reading it down and summarizing the conditions precedent in-built into it and it was obligatory for the High Court to decide the writ petitions in its totality; and while so deciding, to declare whether on the parameters of the conditions precedent in section 9-D, as laid down in the impugned judgment, the petitioners were entitled to any relief or not. 5. Mr. Bagaria continued by submitting that the details of the earlier proceedings as well as all earlier orders including the orders passed by the Customs, Excise and Gold Control App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossexamination, denied any flow back to the appellants. The remaining statements remained untested but were relied upon by invoking section 9-D of the Excise Act. Grievance of the appellants in the writ petitions was that the parameters of section 9-D had been completely ignored by the authorities. 10. Since the show-cause notices were spread over a thousand pages and 600 (six hundred) of which were related to 63 (sixty-three) statements on which the department had placed reliance, the appellants on 6th March, 1991 made a request for cross-examination of 31 (thirty-one) witnesses. However, without attempting to follow the principles of natural justice, adjudication orders in respect of the showcause notices had been passed by the adjudicating authority confirming the demands. 11. Despite persistent requests, the facility of crossexamination was denied. Even before the Collector of Central Excise had passed any order confirming the demand of duty against them, the appellants had rushed to the High Court to complain about the fairness of the procedure followed by the Collector, more particularly, the denial of the opportunity to cross-examine. During the pendency of the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Collector and the CEGAT placing reliance upon Section 9-D of the Act are pending before the Supreme Court? 2. If answer to question No. 1 is in the affirmative, whether Section 9-D suffers from any vice of unconstitutionality? 15. Insofar as the first question is concerned, the High Court, inter alia, held as follows: Two of the orders when challenged before the Supreme Court, were upheld by Their Lordships also while the remaining three appeals are pending adjudication. It is obvious that stand (sic) disposed of or those pending before the Apex Court, the question of fairness of the procedure and in particular, the denial of any opportunity to cross-examine the witnesses was and continues be available to the petitioner. If the discretion vested in the authority in terms of Section 9D(1)(a) has been improperly exercised, Their Lordships could have granted relief in the disposed of appeals and can even now grant relief to the petitioner in the appeals that are pending for disposal. It is also evident that while examining the question of fairness of the procedure adopted by the adjudicating authority, the interpretation of provisions of Section 9D(1)(a) woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending for a long time, we would request the High Court to consider the desirability of disposing of thewrit petitions, filed by the appellants, as expeditiously as possible, preferably without a period of three months from the date of communication of this order. All contentions of the parties shall remain open. 17. It was in terms of the order dated 25th April, 2008 that the High Court once again considered the challenge of the appellants to the vires of section 9-D of the Excise Act. Upon hearing learned counsel appearing for the parties, the High Court in the impugned judgment and order dated 28th August, 2009 recorded the following conclusions:- 32. Thus, we summarize our conclusions as under:- (i) We are of the opinion that the provisions of Section 9-D(2) of the Act are not unconstitutional or ultra vires; (ii) While invoking Section 9-D of the Act, the concernedauthority is to form an opinion on the basis of material on record that a particular ground, as stipulated in the said Section, exists and is established; (iii) Such an opinion has to be supported with reasons; (iv) Before arriving at this opinion, the authority would give opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of section 9-D of the Excise Act was under challenge. Secondly, even if section 9-D were intra vires, whether the parameters thereof were completely ignored by the excise authorities. 25. The writ petitions were instituted before the High Court way back in 1992 before any adjudication order was passed praying, inter-alia, for cross-examination of the remaining witnesses whose cross-examination had already been permitted but who were not produced. Pursuant to the liberty given by the High Court, the appellants filed an application for amendment mentioning in detail as to how and for what reasons invocation of section 9-D by the Commissioner was illegal and also challenging the vires of section 9-D of the Excise Act. 26. Though vehemently argued by Mr. Bagaria, there is no pending proceeding where the principles and prerequisites laid down by the High Court for invocation of section 9-D of the Excise Act vis- -vis the appellants case could be attracted for a decision. When this Court by its order dated 25th April, 2008 remitted the matter to the High Court for deciding the question of vires of section 9-D, only the civil appeals carried from the orders of the Tribunal by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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