Hotel Empires v. Commissioner (appeals), Central Excise
2017-03-16
BISWAJIT MOHANTY, I.MAHANTY
body2017
DigiLaw.ai
ORDER Mahanty, J. - Heard Mr. J. Sahoo, Learned Sr. Advocate for the petitioner and Mr. Ch. S. Mishra, Learned Sr. Standing Counsel for the Central Excise, Customs and Service Tax Department. 2. The petitioner being aggrieved by an order of adjudication dated 26-9-2014 passed by the Joint Commissioner of Central Excise, filed a statutory first appeal before the Commissioner (Appeals) which came to be registered as Appeal No. 75/ST/B-I/2016. It further appears that the Revenue being aggrieved by the self same order of adjudication had also preferred an appeal registered as Appeal No. 120/ST/B-I/2014. 3. It transpires from the facts of the present case is that the appeal filed by the present petitioner, namely, Hotel Empires was heard by the appellate authority and was partly allowed by order dated 27th October, 2016 under Annexure-3 but, at the same time, the appeal filed by the Revenue against the self same order of adjudication remain pending. It further appears that after the disposal of the petitioner's appeal, a notice has been issued to the petitioner in connection to the appeal filed by the revenue against the self same adjudicatory order for hearing. 4. Mr. Sahoo, Learned Sr. Advocate for the petitioner submits that since the adjudicatory order itself gave rise to two appeals, one at the behest of the petitioner and the other at the behest of the revenue, it would have been appropriate for the appellate authority to deal with both the challenges simultaneously since the possibility of different orders being passed and confusion may arise therefrom. He placed reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Commissioner of Sales Tax, U.P. vs. Vijai Int. Udyog - AIR 1985 SC 109 where their Lordships took into consideration the fact that in the said case, the Tribunal had committed a mistake by not clubbing the two appeals together for consideration and disposal by a common order. The Hon'ble Supreme Court also noted the fact that it is a well-settled proposition of law that no party should suffer on account of the mistake of the Court or Tribunal. Further the Hon'ble Supreme Court directed as follows : 5.
The Hon'ble Supreme Court also noted the fact that it is a well-settled proposition of law that no party should suffer on account of the mistake of the Court or Tribunal. Further the Hon'ble Supreme Court directed as follows : 5. To mete out justice to the parties and overcome the difficulty arising in the circumstances indicated above, we suggested to the counsel of the parties that both the appeals should be reheard by the Tribunal and counsel for both parties fairly agreed that it should be done. We accordingly allow this appeal, set aside the order of the High Court as also the two separate orders of the Tribunal by consent of parties and direct that appeal No. 1366 of 1980 filed by the assessee and Appeal No. 541 of 1981 filed by the Commissioner relating to the year 1978-79 shall be reheard. The Tribunal shall hear both the appeals on the same day and dispose them of by a common judgment to avoid any further difficulty. There shall be no order as to costs. 5. Both Mr. Sahoo, Learned Sr. Advocate for the petitioner as well as Mr. Mishra, Learned Sr. Standing Counsel for the revenue submit that similar direction may be passed in the present case and in order to over come the difficulties arising in the present circumstances, the counsels agreed that both the appeals should be reheard by the first appellate authority and since the Learned Counsels fairly agreed that it should be done, we accordingly, allowed the writ application, set aside the order dated 27-10-2016 under Annexure-3 and call upon the appellate authority to once again issue fresh notices to both the parties in the connected appeals and after affording the parties a fresh opportunity of hearing pass a common order disposing of both the appeals as referred to hereinabove. 6. We may also observe herein that the present case may not be a singular case where such problems are arising. Therefore, we call upon the appellate authority to cross check the appeals that are filed against a common adjudicatory order and ensure that in the future all appeals against common adjudicatory orders are tagged together, heard and disposed of simultaneously. 7. With such observation and directions, the writ application is allowed. 8. Free copy of this order be handed over to the Learned Standing Counsel for the Revenue. 9.
7. With such observation and directions, the writ application is allowed. 8. Free copy of this order be handed over to the Learned Standing Counsel for the Revenue. 9. Urgent certified copy of this order be granted on proper application.