2019 (1) TMI 61 - AT - Central Excise

Principles of natural justice - impugned order passed without application of mind - it was argued that penalty and duty has been imposed under Customs as well as Central Excise Acts without specifying whether the penalty is under Customs Act or the Central Excise Act and how much is under Customs Act and how much is under Central Excise Act. Held that - Board Circular 21/95-Cus dated 10.03.1995 clearly prescribes that action in such cases by Revenue should be taken after definite conclusion has been arrived at by the Development Commissioner. In the instant case, the Development Commissioner has issued notices, however, as per the details, no specific decision has been reached and the order is in clear violation of Circular No. 21/95-Cus dated 10.03.1995 - also, two different officers have passed the adjudication order. One has passed without considering the defense submission given by the appellant and the second order has been passed after considering the defense submissions made by the appellant. Under no circumstances, both the orders passed by different officer could have been same and it clearly shows non application of mind and failure to consider the grounds of defense raised by the appellant. Moreover, the issue of jurisdiction is a legal ground and can be invoked at any time. The order is passed without application of mind and therefore, the same is set-aside - matter is remanded back to the Adjudicating Authority for passing a fresh order after considering the grounds raised by the appellant and affording them a reasonable opportunity of hearing - appeal allowed by way of remand.

Summary

Issues:
Confirmation of demands of Customs and Central Excise duty, imposition of penalties and redemption fine, failure to consider defense reply, identical orders passed by different officers, jurisdictional issue regarding appointment of Adjudicating Authority, non-compliance with Circular No. 21/95-Cus dated 10.03.1995.

Analysis:

1. Failure to Consider Defense Reply:
The appellant contended that the Tribunal had remanded the matter previously to consider the defense reply, which was not done adequately. The counsel argued that the fresh order failed to address any grounds raised by the appellant in the defense reply. It was highlighted that the findings in the impugned order were identical to the earlier order, indicating a lack of application of mind by the Adjudicating Authority. The issue of not specifying whether the demand was for Customs duty or Excise duty was raised, citing legal precedents to support the argument.

2. Identical Orders by Different Officers:
The appellant pointed out that two different officers had passed adjudication orders, with one not considering the defense submissions and the other passing an order that was identical to the previous one. This raised concerns about the non-application of mind and failure to address the defense raised by the appellant. The Tribunal found merit in these submissions, emphasizing that orders passed by different officers should not be identical, indicating a lack of proper consideration of the case.

3. Jurisdictional Issue:
The counsel raised a jurisdictional issue regarding the appointment of the Adjudicating Authority, arguing that the appointment should have been done through a notification published in the Gazette as per Rule 3(2) of the Central Excise Rules, 2002. It was contended that a letter was insufficient for such appointments, citing a relevant court decision to support the claim. This issue questioned the validity of the adjudication process based on the authority's appointment.

4. Non-Compliance with Circular No. 21/95-Cus:
The appellant highlighted non-compliance with Circular No. 21/95-Cus dated 10.03.1995, which required action by Revenue to be taken only after a definite conclusion was reached by the Development Commissioner. It was pointed out that the Development Commissioner had not reached a specific decision in this case, leading to a violation of the circular. The Tribunal agreed with this argument, emphasizing the importance of following procedural requirements outlined in such circulars.

In conclusion, the Tribunal set aside the order due to a lack of application of mind and failure to consider the appellant's defense adequately. The matter was remanded back to the Adjudicating Authority for a fresh order after proper consideration of the grounds raised by the appellant and providing them with a reasonable opportunity of hearing. The appeal was allowed by way of remand, highlighting the importance of due process and proper consideration of all aspects in legal proceedings.