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TMI Blog2013 (8) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It had become necessary to ensure that the assesse cooperated with the Department and in the facts and circumstances of the case, appellant/assessee be required to deposit amount of ₹ 50 lakh - it was required to be noted that the petitioners have never pleaded any financial difficulty/crunch - no error and/or illegality has been committed by the Appellate Tribunal issuing the direction while remanding the matter back to the original adjudicating authority, directing the petitioner assessee to deposit a sum of ₹ 50 lakh, which calls for interference of this Court in exercise of powers under Article 226 of the Constitution of India - Application Dismissed. - Special Civil Application No. 17006 of 2012 - - - Dated:- 20-6-2013 - M. R. Shah And Sonia Gokani,JJ. For the Petitioner : Mr. Paresh M. Dave, Advocate For the Respondent : Mr. Darshan M. Parikh, Advocate JUDGMENT (Per : Honourable Mr. Justice M. R. Shah) RULE. Shri Darshan Parikh, learned counsel waives service of notice of Rule on behalf of the Department. In the facts and circumstances of the case and with the consent of learned advocates appearing for respective parties, peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT, Ahmedabad along with the stay application and by order dated 06.01.2010, the Tribunal waived the requirement of predeposit of service tax demanded, interest thereon, penalties etc. and allowed the stay application and simultaneously decided the appeal also and remanded the matter back to the Commissioner for fresh adjudication in terms of the discussion in the said order and after giving opportunity to the petitioners to present their case before final decision is taken. The Tribunal also passed an order that the appellants (petitioners herein) shall cooperate with the Revenue in conducting verification to the correctness of the data submitted by them. [2.3] That thereafter, after remand, the adjudicating authority passed a fresh order on 26.06.2012 and confirmed the demand raised in the showcause notice. At this stage, it is required to be noted that while passing the OIO, the Commissioner specifically observed that despite ample opportunities accorded to the appellants, they have failed to furnish relevant documents proving their contention evidencing that they have nothing to prove in support of their claim and thereafter on the basis of the material available on record a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt while passing the order of remand under Section 35C of the Central Excise Act, 1944 (hereinafter referred to as Act ). [3.1] Shri Paresh Dave, learned advocate appearing on behalf of the petitioners has submitted that once the Order in Original is set aside by the Tribunal in exercise of powers under Section 35C of the Act and the matter is remanded to the original adjudicating authority, as such there will not be any liability to pay the duty, penalty, interest etc. unless and until a fresh order of adjudication is passed and therefore, the Tribunal has no jurisdiction to pass an order of predeposit while remanding the matter to the original adjudicating authority and as a condition of predeposit of considering the case on merits on remand. [3.2] It is further submitted by Shri Paresh Dave, learned advocate appearing on behalf of the petitioners that imposition of condition precedent for setting aside the order while remitting back the matter for de novo consideration is impermissible as per the statutory provision of Section 35C of the Act. It is submitted that having reached the conclusion that order in original requires to be set aside and remanded to the original au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority as well as the Tribunal that the petitioner did not extend the cooperation before the adjudicating authority is factually incorrect. It is submitted that in fact the petitioner did produce certain documents and therefore, it cannot be said that there was no cooperation at all by the petitioner. Shri Dave, learned advocate appearing on behalf of the petitioners has submitted that even otherwise it cannot be said that in the aforesaid decision, there is any decision by the Punjab Haryana High Court with respect to the powers of the Tribunal under Section 35C of the Act. It is submitted that as such in the said decision the High Court has not dealt with the powers of the Tribunal under Section 35C of the Act. Making above submissions and relying upon above decisions, it is requested to allow the present Special Civil Application and quash and set aside the impugned direction issued by the Appellate Tribunal of deposit of ₹ 50 lakh by the petitioner, while remanding the matter back to the original adjudicating authority, as a precondition to consider the case on merits on remand. [4.0] Present petition is opposed by Shri Darshan Parikh, learned counsel appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e condition of deposit of some amount while remanding the matter back to the original authority. It is further submitted that against the decision of the P H High Court in the case of Shiv Sewa Sadan (Supra), SLP before the Hon ble Supreme Court has been dismissed. Making above submissions and relying upon above decision, it is requested to dismiss the present Special Civil Application. [5.0] In reply and with respect to the decision of the P H High Court in the case of Shiv Sewa Sadan (Supra) against which SLP is dismissed by the Hon ble Supreme Court, Shri Dave, learned advocate for the petitioners has relied upon number of decisions submitting that dismissal of SLP at the admission stage cannot be said to be confirmation of the order of P H High Court on merits. It is further submitted that even on facts also the decision of the P H High Court would not be applicable as Punjab Haryana High Court did not go into detail with respect to the power of Appellate Tribunal to issue such directions, under Section 35C of the Act and simply rejected the petition by observing that the matter is remanded to the original adjudicating authority and no substantial question of law arise. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. 1[1(A)The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of any appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) The Appellate Tribunal may, at any time within 2[six months] from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1) and shall make such amendments if the mistake is brought to its notice by the 3[Commissioner of Central Excise] or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this subsection, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. 1[2(A) The Appellate Tribunal shall, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority and before his case is considered on merits by the original adjudicating authority on remand. The aforesaid direction as such cannot be said to be a order of predeposit as per section 35F of the Act. Such a direction of deposit of some amount while remanding the matter to the original authority can be said to be imposing of condition of deposit of some amount before any de novo adjudication by the original authority on remand which was necessitated due to the reasons attributed to the assessee. In a given case, if it is found by the Tribunal that the order of remand is required to be passed because of the reasons which are not attributed to the assessee and/or because of any error and/or fault on the part of adjudicating authority, the Tribunal may not issue such direction of deposit. However, to say that the Appellate Tribunal lacks total jurisdiction of issuing any such direction of deposit of some amount while remanding the matter to the original adjudicating authority for de novo adjudication under Section 35C of the Act, cannot be accepted. [6.1] Now, so far as the reliance placed upon the decision of the Allahabad High Court in the case of Summerking Electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al adjudicating authority for fresh adjudication as it deems fit. [6.3] Now, so far as the reliance placed upon the decision of the Punjab Haryana High Court in the case of Shiv Sewa Sadan (Supra) by the learned counsel for the Revenue and the submission that the SLP against the order of Punjab Haryana High Court has been dismissed and the submission made by the learned counsel appearing for the petitioners that dismissing the SLP, it cannot be said to be confirming the order passed by the Punjab Haryana High Court is concerned, it is true that dismissing the SLP in limine cannot be said to be confirming the order passed by the High Court and therefore, we do not say for a moment that on dismissing the SLP in limine and at the admission stage, would tantamount to confirming the order of the Punjab High Court in the case of Shiv Sewa Sadan (Supra). However, the fact remains that the same can be said to be a decision of the High Court. In any case, we have decided the present petition independently and have given our own findings and our judgment is solely based on the decision of the Punjab Haryana High Court in the case of Shiv Sewa Sadan (Supra). The contention raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before there is a fresh adjudication on remand. While issuing such a direction it is specifically observed by the Tribunal that appellants have contributed substantially to the impugned order being passed against them; that the appellants have not extended full cooperation and have not given necessary details as per the earlier directions of the Tribunal and the appellants did not extend cooperation to the adjudicating authority and consequently no verification could be conducted and the OIO came to be passed, nevertheless, another opportunity is required to be given to the appellants. Not only that, even the learned advocate appearing on behalf of the assessee also agreed that this time they would ensure that the documents are submitted and cooperation is extended , meaning thereby as such on behalf of the assessee it was conceded that they did not submit relevant documents and did not extend the cooperation. It is also required to be noted and it appears from the impugned direction that while issuing such direction the Appellate Tribunal was also conscious of the fact that in the normal course, at the said stage, when the matters are remanded, predeposit is not insisted upon. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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