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TMI Blog2023 (11) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... lakh + Rs.275.00 lakhs. 3.0 Notice for hearing was issued to the respondent a number of times which have been received back undelivered. The matter has been adjourned on each occasion for the reason that respondent did not respond to any of the notices issued to them by the registry. Matter has been adjourned for more than 03 times whereas as per proviso to Section 35C 1(A) matter could have been adjourned maximum for 03 times on the request of any party to appeal. For ready reference Section 35C(1A) is reproduced below:- "Section 35C. Orders of Appellate Tribunal. - (1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal." Rule 21 of the CESTAT Procedure Rules, 1982 provides as follows: "RULE 21. Hearing of appeals ex parte. - Where on the day fixed for the hearing of the appeal or on any other day to which the hearing is adjourned the appellant appears and the respondent does not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers that Shri Ranjeet Verma and Smt Seema Verma had left the address at 165, Deep Nagar, RDSO, Lucknow and the new address was not known to her. She also refused to receive the letters. Thereafter the officers visited the premises at 165, Deep Nagar, RDSO, Lucknow but found it locked and no one was found in the premises. It was informed by the neighbors that the premises was closed since long time. Consequently, the letter granting opportunity of personal hearing to Shri Ranjeet Verma and Smt Seema Verma was sent by speed post but was returned as 'undelivered by the postal authorities. Therefore on 5.8.2010, the Central Excise officers pasted the letter granting opportunity of personal hearing on 17.8.2010 at the front door of M/s Harsh Traders, 165, Deep Nagar, RDSO, Lucknow under the provisions of Section 37 C (1) of the Central Excise Act, 1944. 47. On 17.8.2010, Shri G.K.Dhusia, Consultant for M/s Aditya Packs, Lucknow appeared for personal hearing before the Commissioner, Central Excise and Service Tax, Lucknow and reiterated the points of the written reply and had nothing to say besides that. 48. Shri Ranjeet Verma, proprietor of M/s Harsh Traders, 165-Deep N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... example of misuse of adjournments granted by the court. It is to be noted that the respondents herein - original plaintiffs filed the suit for eviction, arrears of rent and mesne profit as far as back in the year 2013. That thereafter despite the repeated adjournments sought and granted by the court and even twice the adjournments were granted as a last opportunity and even the cost was imposed, the defendant failed to cross examine the plaintiff's witness. Although the adequate liberty was given to the defendant to cross examine the plaintiff's witness, they never availed of the same and went on delaying the proceedings by repeated prayers of adjournment and unfortunately the Trial Court and even subsequently the High Court continued to grant adjournment after adjournment and as such contributed the delay in disposal of the suit which as such was for eviction. Such approach is wholly condemnable. Law and professional ethics do not permit such practice. Repeated adjournments on one or the other pretext and adopting the dilatory tactics is an insult to justice and concept of speedy disposal of cases. Petitioner - defendant acted in a manner to cause colossal insult to justice and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 579 has observed in paragraph 4 as under:" 4. ... Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to 'fair trial', whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings." 5.3 In the case of Noor Mohammed v. Jethanand and Anr. (2013) 5 SCC 202, using very harsh words and condemning the repeated adjournments sought by the lawyers and granted by the courts, this court has observed in paragraph 1, 12, 13, 27 and 28 as under:" 1. In a democratic body polity which is governed by a written Constitution and where the Rule of Law is paramount, the judiciary is regarded as sentinel on the qui vive not only to protect the fundamental rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied. Sacrosanctity of the Rule of Law neither recognises a master and a slave nor does it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralyzed by adjournments and non demonstration of due diligence to deal with the matter. One cannot be oblivious to the feeling necessities of the time. No one can afford to sit in an ivory tower. Neither a Judge nor a lawyer can ignore "the total push and pressure of the cosmos". It is devastating to expect infinite patience. Change of attitude is the warrant and command of the day. We may recall with profit what Justice Cardozo had said: "It is true, I think, today in every department of the law that the social value of a rule has become a test of growing power and importance." [ Benjamin N. Cardozo, The Nature of Judicial Process (Cosimo Inc., 2009) 73] 13. It has to be kept in mind that the time of leisure has to be given a decent burial. The sooner it takes place, the better it is. It is the obligation of the present generation to march with the time and remind oneself every moment that the rule of law is the centripodal concern and delay in delineation and disposal of cases injects an artificial virus and becomes a vitiating element. The unfortunate characteristics of endemic delays have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice dispensation system cannot be allowed to remotely conceive of a casual approach." 5.4 In the aforesaid decision, this court also considered the role of advocate in the justice delivery system and cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be experienced by the petitioner. It is stated that his advocate is finding it difficult to attend the court from day to day. It is the duty of every advocate, who accepts the brief in a criminal case to attend the trial from day to day. We cannot overstress the duty of the advocate to attend to the trial from day to day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend." 20. In Mahabir Prasad Singh [(1999) 1 SCC 37 : AIR 1999 SC 287], the Bench, laying emphasis on the obligation of a lawyer in his duty towards the Court and the duty of the Court to the Bar, has ruled as under: (SCC p. 44, paras 1718) "17. ... 'A lawyer is under obligation to do nothing that shall detract from the dignity of the court of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the Judge, and scrupulously observe the decorum of the courtroom.' [Warevelle's Legal Ethics, p. 182] 18. Of course, it is not a unilateral affair. There is a reciprocal duty for the court also to be courteous to the members of the Bar and to make every endeavour for maintaining and protecting the respect whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the litigant to access to justice and the speedy trial. Arrears are mounting because of such delay and dilatory tactics and asking repeated adjournments by the advocates and mechanically and in routine manner granted by the courts. It cannot be disputed that due to delay in access to justice and not getting the timely justice it may shaken the trust and confidence of the litigants in the justice delivery system. Many a times, the task of adjournments is used to kill Justice. Repeated adjournments break the back of the litigants. The courts are enjoying upon to perform their duties with the object of strengthening the confidence of common man in the institution entrusted with the administration of the justice. Any effort which weakens the system and shake the faith of the common man in the justice dispensation has to be discouraged. Therefore the courts shall not grant the adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice. The courts have to be diligence and take timely action in order to usher in efficient justice dispensation system and maintain faith in rule of law. We are also aware that whenever the trial cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the basis of the records, the case has been adjudicated by the Original Authority confirming the demand amounting to Rs. 137.50 lakh + Rs.2.75 lakhs. While confirming the demand for invoking the provisions of extended period and for imposition of penalty under Section 11AC, adjudicating authority has recorded as follows: "104 I hold that on 11.5.09, one Pouch Packing Machine installed in the registered premises of M/s Harsh Trader, 165, Deep nagar, Lucknow, was found operational. The excisable / notified goods "Gutkha" with brand name 'Prem Bahar' and 'Partner' (MRP Re 1.00) were being manufactured since Ju;ly 2008 in contravention of Pan Masala Machines (Capacity Determination and Collection of Duty) Rules, 2008. I find, duty amounting to Rs 137.50 Lakhs is demandable and liable to recovery from M/s Harsh Traders, Lucknow under the proviso to Section 11 A (1) of the Central Excise Act, 1944 alongwith interest under Section 11AB of the Central Excise Act, 1944. 105. 104 I hold that on 11.5.09, two Pouch Packing Machines installed in the unregistered premises Little Care Public School, Behind RDSO, Gurudwara, Surya Nagar, Lucknow were found operational. The excisable/ notifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to be conclusive (without prejudice to the provisions of Sections 9, 9A and 9AA) as provided in the proviso to sub-section 2 of Section 11A. Sub-section 1A and the proviso to sub-section 2 were inserted with effect from July 13, 2006 and, therefore, have no application to the periods relevant to the two appeals. 15. Sub-section 2B of Section 11A provides that in case the person in default makes payment of the escaped amount of duty before the service of notice then the Revenue will not give him the notice under sub-section 1. This, perhaps, is the basis of the common though erroneous view that no penalty would be leviable if the escaped amount of duty is paid before the service of notice. It, however, overlooks the two explanations qualifying the main provision. Explanation 1 makes it clear that the payment would, nevertheless, be subject to imposition of interest under Section 11AB. Explanation 2 makes it further clear that in case the escape of duty is intentional and by reason of deception the main provision of sub section 2B will have no application. 16. The other provision with which we are concerned in this case is Section 11AC relating to penalty. It is as fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.] 17. The main body of Section 11AC lays down the conditions and circumstances that would attract penalty and the various provisos enumerate the conditions, subject to which and the extent to which the penalty may be reduced. 18. One cannot fail to notice that both the proviso to sub-section 1 of Section 11A and Section 11AC use the same expressions : "....by reasons of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty,...". In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under Section 11A(1) states that the escaped duty was the result of any conscious and deliberate wrong doing and in the order passed under Section 11A(2) there is a legally tenable finding to that effect then the provision of Section 11AC would also get attracted. The converse of this, equally true, is that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no discretion in the matter of imposition of penalty and the adjudicating authority in such cases was duty bound to impose penalty equal to the duties so determined. The assessee on the other hand referred to Section 271(1)(c) of the Income Tax Act, 1961 (in short the IT Act') taking the stand that Section 11AC of the Act is identically worded and in a given case it was open to the assessing officer not to impose any penalty. The Division Bench made reference to Rule 96ZQ and Rule 96ZO of the Central Excise Rules, 1944 (in short the "Rules') and a decision of this Court in Chairman, SEBI v. Shriram Mutual Fund & Anr. [2006 (5) SCC 361] and was of the view that the basic scheme for imposition of penalty under section 271(1)(c) of IT Act, Section 11AC of the Act and Rule 96ZQ(5) of the Rules is common. According to the Division Bench the correct position in law was laid down in Chairman, SEBI's case (supra) and not in Dilip Shroff's case (supra). Therefore, the matter was referred to a larger Bench." After referring to a number of decisions on interpretation and construction of statutory provisions, in paragraphs 26 and 27 of the decision, the court observed and held as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Section 11AC, Rule 173Q was in vogue in which no mens rea was provided for. It only stated "which he knows or has reason to believe". The said clause referred to wilful action. According to learned counsel what was inferentially provided in some respects in Rule 173Q, now stands explicitly provided in Section 11AC. Where the outer limit of penalty is fixed and the statute provides that it should not exceed a particular limit, that itself indicates scope for discretion but that is not the case here." 23. The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A. That is what Dharamendra Textile decides." 10. Taking note of the above, we are of the view that the appeal of the Revenue is having merits and needs to be allowed. 11.0 Appeal filed by the Revenue is allowed. ( Dictated and pronounced in open court )< ..... X X X X Extracts X X X X X X X X Extracts X X X X
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