2010 (11) TMI 829 - AT - Service Tax

Order - Commissioner of Customs (Appeals), Cochin reducing the quanta of fine and penalty imposed on the respondent by the original authority - respondent, it is submitted that they did not receive any copy of the above order and that what they received is a copy of Order-in-Appeal of even number passed on 30-9-08 but issued on 19-11-08 - submitted that they did not know as to which of the order is the order passed by the Commissioner (Appeals) in the appeal filed by them against the Order-in-Original Held that - other order was issued on 19-11-2008 and the same was not received by the Commissioner of Customs, Cochin, though it was received by the respondent. Both the orders were apparently passed in an appeal filed by the respondent against Order-in-Original No. 64/2008 dated 13-6-2008 passed by the Joint Commissioner of Customs (SIIB), Cochin, orders of the Commissioner (Appeals) are set aside and this appeal is allowed by way of remand

Summary

Issues:
Confusion arising from two orders of the Commissioner (Appeals) with the same number and date but issued on different dates; Discrepancies in findings and conclusions between the two orders; Request for remand of the case for a fresh decision.

Analysis:
The appeal before the Appellate Tribunal concerned the Revenue's challenge against Order-in-Appeal No. 275/2008 passed by the Commissioner of Customs (Appeals), Cochin, reducing the fine and penalty imposed on the respondent. The respondent, in a cross-objection, highlighted discrepancies in the orders received, one issued on 6-10-2008 and the other on 19-11-2008. The Tribunal noted that both orders bore the same number and date but were issued on different dates, leading to conflicting findings and conclusions. The Tribunal observed that the Commissioner (Appeals) should have handled the appeal with more diligence to avoid confusion. Consequently, the Tribunal set aside both orders and directed the Commissioner (Appeals) to pass a fresh order after providing the parties with a reasonable opportunity to present their case.

The learned SDR requested a remand of the case for a de novo decision by the Commissioner (Appeals), while the respondent's counsel argued that as there was no appeal against the order issued on 19-11-2008, the Tribunal should not set it aside in the ongoing proceedings. The Tribunal acknowledged the unique nature of the case due to the identical orders with different outcomes and emphasized the need for clarity and consistency in the appellate authority's decisions. To ensure justice, the Tribunal invoked Rule 40 of the CESTAT (Procedure) Rules, 1982, to set aside the Order-in-Appeal issued on 19-11-2008 in the absence of an appeal. By setting aside both orders of the Commissioner (Appeals), the Tribunal allowed the appeal by remanding the case with specific directions for a fresh decision.

In conclusion, the Tribunal addressed the confusion stemming from the contradictory orders issued by the Commissioner (Appeals) and emphasized the importance of a thorough and consistent approach in appellate decisions. By invoking Rule 40, the Tribunal aimed to rectify the situation and ensure a fair opportunity for both parties to present their case before a new decision is made by the lower appellate authority. The judgment highlighted the significance of procedural fairness and the need for clear and unambiguous orders in legal proceedings.