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2015 DIGILAW 748 (GUJ)

Tec Paper Pvt. Ltd. v. Union of India

2015-07-30

A.J.DESAI, ABDULLAH GULAMAHMED URAIZEE

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JUDGMENT A.J. Desai, J. 1. Heard learned advocates for the respective parties. 2. Rule. Mr. Lodha, Central Government Standing Counsel waives service of notice of Rule on behalf of respondent No. 1 and Mr. R.J. Oza, learned Senior Advocate waives service of notice of Rule on behalf of respondent No. 2. 3. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing. 4. By way of the present petition filed under Articles 14, 19, 226, 265 and 300-A of the Constitution of India, the petitioner has challenged the order No. A/10836/2014 dated 11.04.2014 passed by the Customs, Excise & Service Tax Appellate Tribunal (herein after referred to as 'the Tribunal' for short), by which the appeal preferred by the respondent - revenue challenging the order passed by the Commissioner (Appeals), Central Excise, Ahmedabad - III has been quashed and set aside and the appeal is allowed in favour of the respondent - revenue. The petitioner has requested the Court to exercise its extraordinary power under Article 226 of the Constitution of India mainly on the two grounds, which are as under. [i] Though, the matter was heard and was kept for order, the same was again taken up for hearing and was decided in absence of the petitioner (original respondent No. 1) [ii] The matter was heard by the Member (Judicial) of the Tribunal, however, the decision has been delivered by the Member (Technical) of the Tribunal, who had never dealt with the case in past. 5. The brief facts arise from the record are as under: 5.1. That the petitioner is a private limited company registered under the provisions of the Companies Act, 1956, has engaged in manufacture of Ordinary Duplex Board and S.S.W. Duplex Board falling under Chapter - 48 of the First Schedule to the Central Excise Tariff Act, 1985. On suspicion, while road patrolling, the officers of the respondent department found ordinary Duplex Board weighing 12622.4 kg. with invoice No. 173 dated 20.03.2004, which was in the opinion of the officers of the respondent department found to be tempered with. 5.2. A show cause notice was issued to the petitioner. On suspicion, while road patrolling, the officers of the respondent department found ordinary Duplex Board weighing 12622.4 kg. with invoice No. 173 dated 20.03.2004, which was in the opinion of the officers of the respondent department found to be tempered with. 5.2. A show cause notice was issued to the petitioner. Subsequent to production of documentary evidence, the Additional Commissioner, Central Excise, Ahmedabad - III dropped the proceedings by order dated 06.05.2005, which was challenged before the Commissioner of Central Excise (Appeals) who confirmed the order passed by the authority. Both the orders have been challenged by the respondent -revenue before the Tribunal by way of filing an appeal. 5.3. The matter was listed for hearing on 06.09.2013 and the same was adjourned on 20.09.2013. On 20.09.2013, the same Member (Judicial) of the Tribunal heard both the sides and the matter was reserved for orders. 5.4. The petitioner received an order impugned dated 11.04.2014 passed by the Member (Technical) of the Tribunal by which the appeal filed by the respondent revenue came to be allowed. Hence, this petition. 6. Pursuant to notice issued by this Court, respondent have filed affidavit-in-reply and thereto, affidavit-in-rejoinder has been filed by the petitioner. 7. Mr. Dhaval Shah, learned advocate for the petitioner would submit that though the matter was heard by the Member (Judicial) of the Tribunal, the matter was again listed before the Member (Technical) of the Tribunal on 07.3.2014, of which the petitioner was not aware about the date of hearing and therefore, the matter was heard ex-parte and the decision was rendered on 11.04.2015 by the Member (Technical) of the Tribunal. He, therefore, would submit that the order impugned passed by the Member (Technical) of the Tribunal is required to be quashed and set aside. 8. Learned advocate for the petitioner would further submit that matter was heard by the Member (Judicial) of the Tribunal and the order was reserved. The Member (Judicial) of the Tribunal, instead of pronouncement of the order, had put an endorsement on the order sheet that the matter be relisted on the board for certain clarifications. Instead of relisting the matter on board of the Member (Judicial) of the Tribunal, the same was listed before the Member (Technical) of the Tribunal, who had ultimately decided the matter in absence of the petitioner or his advocate. 9. Instead of relisting the matter on board of the Member (Judicial) of the Tribunal, the same was listed before the Member (Technical) of the Tribunal, who had ultimately decided the matter in absence of the petitioner or his advocate. 9. In support of his case, he has also produced order sheet, Rojkam of 20.09.2013 as well as 07.03.2013, which shows the dates of listing the matter on board. 10. Learned advocate for the petitioner would further submit that the Member (Judicial) of the Tribunal should have heard the matter and ought to have got clarification either from the petitioner or respondent - revenue and the Member (Technical) of the Tribunal ought not to have heard the matter. In support of his case, he has relied upon the decisions in case of Automotive Tyre Manufacturers Association V. Designated Authority and Ors. reported in (2011) 2 SCC 258 and in the case of Union of India & Ors. V. Shiv Raj & Ors. reported in (2014) 6 SCC 564 and submitted that the order impugned in this petition be quashed and set aside and the matter be remanded for fresh consideration. 11. As far as first contention raised by the petitioner is concerned, Mr. R.J. Oza, learned senior advocate, appearing for respondent No. 2 would submit that first contention raised by the petitioner is without any basis since a notice, for fresh hearing, was issued to the petitioner by UPC and the same was received on behalf of the petitioner. In support of the contention, he has produced documentary evidence and submitted that some person has received the notice of new date of hearing which was fixed on 07.03.2014 and therefore, the submission made by the learned advocate for the petitioner that he was not aware about the date of the hearing is without any basis and therefore, is required to be discarded. 12. As far as second contention raised by the petitioner is concerned, Mr. Oza, learned senior advocate would submit that since the petitioner was aware about the notice of fresh date, he should have appeared before the Tribunal and ought to have argued the matter on merits. He would further submit that neither the petitioner nor his advocate remained present on the date of hearing on 07.03.2014 and therefore, the petition is meritless and is required to be dismissed. 13. We have heard learned advocates for the respective parties. He would further submit that neither the petitioner nor his advocate remained present on the date of hearing on 07.03.2014 and therefore, the petition is meritless and is required to be dismissed. 13. We have heard learned advocates for the respective parties. Perused the order sheet, Rojkam dated 20.09.2013 and 07.03.2014. It appears from the order sheet that the matter was heard before the Member (Judicial) of the Tribunal and the matter was reserved for orders. The Member (Judicial) of the Tribunal had put a note on 25.10.2013 which reads as under: "As some points needs clarification, registry is directed to re-list this appeal." 14. Thus, the matter was fixed for hearing by the Registry on 07.03.2014 and therefore, the petitioner was issued notice for the new date of hearing. It appears that one Vipul Patel had received the notice. It is irrelevant whether it is denied by the petitioner that said Vipul Patel is not his employee. Therefore, we are of the opinion that the first contention raised by the petitioner is meritless and is discarded. 15. As far as second contention is concerned, we are of the opinion that when the appeal was already heard and reserved for orders and the Member (Judicial) of the Tribunal had directed the registry for re-listing the matter for the certain clarification, the registry ought to have re-listed the matter before the Member (Judicial) of the Tribunal and not before the Member (Technical) of the Tribunal. The Member (Technical) of the Tribunal ought not to have proceeded with the matter in absence of the petitioner and ought not to have decided the same, which is, in our opinion, contrary to the decisions of the Hon'ble Apex Court in case of Automotive Tyre Manufacturers Association V. Designated Authority and Ors. reported in (2011) 2 SCC 258 and in the case of Union of India & Ors. V. Shiv Raj & Ors. reported in (2014) 6 SCC 564 (Supra). The Member (Judicial) of the Tribunal was the best person to decide the matter only after getting some clarification, which he intended to get from the either party as he had put remarks on 25.10.2013. 16. Considering the peculiar facts and circumstances of the case, we are of the opinion that the order impugned in the petition is required to be quashed and set aside and accordingly the same is quashed and set aside. 17. 16. Considering the peculiar facts and circumstances of the case, we are of the opinion that the order impugned in the petition is required to be quashed and set aside and accordingly the same is quashed and set aside. 17. The matter is required to be remanded to the Tribunal for a fresh hearing and accordingly is remanded. It is hereby made clarified that the matter shall be heard and decided only by one person either by the Member (Judicial) of the Tribunal or by Member (Technical) of the Tribunal in accordance with law. 18. Rule made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.