9911796707
TMI Blog1994 (8) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... e original order passed by Sh. Gowri Shankar, who was the Collector of Central Excise, Chandigarh upto 17-4-1990 and he could only show a rough draft initialled by the officer and a cyclostyled copy marked as `office copy signed by, some official `for Collector . The main appeals were fixed for hearing on the next date i.e. 19-12-1991 on which date, the Bench recorded as follows - At the outset the learned CDR filed a copy of the telex No. 1/C/90 dated 18-12-1990 received from Sh. S.P. Srivastava, Collector of Central Excise, Chandigarh and stated that according to this telex, the Collector who succeeded Shri Gowri Shankar, namely Shri S.P. Shrivastava had taken charge from Sh. Gowri Shankar on 17-4-1990. The learned CDR also filed a photocopy of the draft order dated 16-4-1990. She stated that this is the order passed by the learned Collector Sh. Gowri Shankar and bears his full dated signatures and the date shown is 16-4-1990. In response to a query from the Bench, she reiterated that this is the order which was passed by Sh. Gowri Shankar while he was still in charge of the Chandigarh Collectorate and it was passed on 16-4-1990 as evident from the date below the signatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order dated 2-7-1990 communicated to the appellants. Misc. Order No. 300-91 passed on that date is reproduced below - In continuation of the submissions made on 19-12-1990 the learned counsel drew attention to the discrepancies between the so-called draft order signed on 16-4-1990 and said to be the final order as signed by the Collector of Central Excise Sh. Gowri Shankar before handing over the charge of the Collector of Chandigarh to his successor and the copy of the order dated 2-7-1990 which had not been signed by the Collector but merely attested by another officer and issued to the appellants. In this connection he drew attention to their request made on 19-2-1990 and their letters dated 19-5-1990, 9-6-1990 and 15-6-1990 as also to the information supplied by them in response to the department s letter dated 25-4-1990 and stated that the draft order which was the so-called final order signed before relinquishing charge contained the figures supplied by them in response to the letter of 25-4-1990 and therefore, it could not be available with the department before this date. He also drew attention to the lines which were missing in the order from page 27 but found in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating officer has since filed an affidavit and annexed a copy of the order passed by him to this affidavit and the same has been filed by the department on 31-1-1991 before the Tribunal. 9. However, in view of the submissions made by the learned counsel regarding the above and discrepancies noticed, she has nothing further to say except that the copy which has been annexed to the affidavit of Sh. Gowri Shankar and described as the order passed by Sh. Gowri Shankar also differs slightly from the copy of the order in the Collectorate s records, copy of which had been earlier filed before the Tribunal under the attestation of JDR, Shri S.K. Sharma in respect of a few lines at page 27. However, in view of the affidavit filed by the learned Sh. Gowri Shankar, adjudicating officer, she leaves the matter to the Bench. 10. In view of the submissions made before us by both sides and the records before us including the affidavit of Sh. Gowri Shankar, we would like Sh. Gowri Shankar to appear before the Tribunal and explain the discrepancies and state clearly on which date he had passed the order finally. We therefore, direct the Collector, Sh. Gowri Shankar to appear before the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is as under - Put up this case after the decision of the Supreme Court in SLP No. 4320/91 CCE v. M/s. Kanpur Bottling Co. Pvt. Ltd. In the meanwhile the operation of Annexure 7 including notice to show cause issued by the Asstt. Registrar on 21-2-1992 is stayed . 5. The Bench adjourned the matter to 18-6-1992 for clarification on the point regarding stay of proceedings as neither side was able to state whether notice of the writ petition was served on the Tribunal s Registry and only letters dated 27-3-1992 and 24-4-1992 addressed by Sh. Huzefa Ahmadi learned advocate for Sh. Gowri Shankar had been received by the Registry. Inspection of records including copies of the writ petition was permitted by order dated 29-7-1992. On 15-9-1992, the learned counsel for the appellants, reiterated their plea for disposal of the appeals independently of the proceedings initiated in the High Court, in view of the likely delay in disposal by the High Court in view of the pendency of the Kanpur Bottling case in the Hon ble Supreme Court. By order dated 24-11-1992, the Bench directed the learned CDR to file copies of relevant notings in the case file with a copy to the other side and passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nges towards which attention of this Bench had been drawn, and which contained material substantively different from the contents of the so-called order communicated to the appellants under the attestation of the A.C. He would also like to mention that although in some cases various Benches of this Tribunal have deferred consideration of the matter once a higher forum had been moved in the type of situation which had arisen as a result of non-appearance of Sh. Gowri Shankar before this Tribunal to clarify the position with reference to the document found in the case records vis-a-vis the document supplied to them and his affidavit and in view of the inability expressed by the Departmental Representatives themselves to explain the matter and which according to the D.Rs themselves could best be explained by Sh. Gowri Shankar personally, his prayer was that this Tribunal may consider the situation as a whole and if in its opinion a stage has been reached where some decision in the case itself may have to be taken, his prayer would be that such an order may be passed and the matter may be remanded. This may perhaps be the only way out of the impasse in the complicated situation which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file that the order as passed by him should be issued, or that it should be faircopied and issued or any such other direction to the persons who despatched such order. In the absence of any such direction on the notesheet side of the file it would seem that there is no direction to issue the order by the officer who passed the order and which direction, is in my respectful submission, an essential stage for the validity of an order. Where there is only a draft, there would be a direction for fair copy followed by signed the fair copy and ordering its issue. This would be the equivalent of pronouncement in open court as the latter course may not be possible in departmental proceedings. That I am led to think that there is usually a direction to issue the final order on the note-sheet side to a subordinate officer as I also find that in the present case also such a direction was given by a successor Collector on 5-6-1992. That the notes in the file end abruptly on 15-3-1990. A fresh page is started regarding page 314/Receipt and this note is recorded on 4-6-1990. From the previous note dated 15-3-1990, it appears that the correspondence dealt with was at pages 228 to 241/C. In fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate who would have been dealing with this file from the last date of hearing of the adjudication proceedings which was 19-2-1990 and on which date a further hearing had been requested in writing in the written submissions and the date of issue of the order to the parties, be kindly directed to be present before the Hon ble Bench. This aspect assumes some importance particularly as the purported order stated to have been signed on 16-4-1990 does not appear to have been seen by anybody till 4-6-1990 and strangely the purported order contained references to information furnished on 25-4-1990 and which has been passed through by some hand which is also not initialled in authentication and indication for identifying the person who made this change. It is submitted therefore, that unless these glaring inconsistencies in the date of passing of the purported order are satisfactorily explained to the Hon ble Bench, the only inference possible is that the purported order was not passed on the date shown on the order but must be some date subsequent to 25-4-1992 when Sh. Gowri Shankar was not the Collector in Chandigarh. The deponent also submits that it is necessary that the records of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had arisen for consideration and the Tribunal had set aside the impugned order and remanded the matter for de novo adjudication. We see no alternative but to adopt the same course of action herein without going into the merits of the matter. We set aside the purported order received by the appellants and remand the cases for de novo adjudication to the Collector of Central Excise, Chandigarh who shall pass fresh orders in accordance with law. The appeals are thus allowed by way of remand. Dated : 12-7-1993 Sd/- (Jyoti Balasundaram) Member (J) 10. [Order per : S.K. Bhatnagar, Vice President]. - With due respects to Hon ble Member (J) my views and orders in the matter are as follows : 11. I observe that at the face of it the file `order dated 16-4-1990 is apparently in the nature of a draft order. Therefore, even if it is presumed that it was passed on the date indicated (i.e. 16-4-1990) just a day before Shri Gowri Shankar relinquished charge of Chandigarh Collectorate, it could not be considered as a final (fair) order, that is, it was not (as yet) an adjudication order in the eyes of law. 12. But even if it is treated as the final order in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder served on the appellants is concerned, it is a document unsigned by the adjudicating Collector and differs in material particulars from the file `order . Therefore, this document is not an adjudication order passed by the proper officer in the eyes of law. 16. In other words, neither the file `order (draft `order ) nor the purported `order received by the appellants could be considered as an adjudication order passed by the proper officer. 17. Indeed the document filed by the appellants as the purported `order can only be considered as `non est in the eyes of law. Hence the successor Collector was at liberty to grant a fresh hearing and decide the cases. The cases are disposed of accordingly. Dated : 20-9-1993 Sd/- (S.K. Bhatnagar) Vice President DIFFERENCE OF OPINION 18. In view of the difference of opinion between Hon ble Judicial Member and the Vice President, the matter is submitted to the Hon ble President for reference to a third Member on the following point : Whether the purported `order was non est in the eyes of law and a declaration to this effect by this Court was sufficient for the disposal of this case or the impugned `ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference in this case lies in a very narrow compass. In the decisions of the Tribunal, in such a situation, where the impugned order was not a proper order in the eye of law, the Tribunal had been inclined to not only quash the tainted order but also to remand the matter for de novo adjudication. This has been done in fact in the case of an order from the same Collectorate under similar circumstances in the case of New India Dyeing Finishing Mills v. Collector of Central Excise, reported in 1992 (59) E.L.T. 418 (Tribunal) in which the Tribunal had followed the ratio of the Supreme Court decision in Surendra Singh and Others v. State of Uttar Pradesh (supra). Another factor to be noted in this case is that the validity of the show cause notice remains unaffected. Further, even the Hon ble Vice President had observed in his proposed order that a successor Collector is at liberty to grant fresh hearing and decide these cases. In the circumstances, it will be more appropriate to set aside the purported order received by the appellants and remand the cases for de novo adjudication to the Collector of Central Excise, Chandigarh for passing fresh orders in accordance with law as has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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