9911796707
TMI Blog2013 (12) TMI 1452X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present appeal. - Decided against assesee. - Tax Appeal No. 488 of 2013 with Civil Application No. 358 of 2013 - - - Dated:- 26-12-2013 - M.R. Shah and R.P. Dholaria, JJ. Shri Paresh M. Dave, Advocate, for the Appellant. Shri Varun K. Patel, Advocate, for the Respondent. JUDGMENT Feeling aggrieved and dissatisfied with the impugned Final Order No. A/10159/WZB/AHD/2013, dated 23-1-2013 passed by the learned Central Excise Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad [hereinafter referred to as Tribunal ] in File No. E/1277/2005 [2014 (311) E.L.T. 54 (Tri.-Ahmd.)], the appellant herein has preferred the present tax appeal with the following proposed substantial questions of law. 12(a) Whether Show Cause Notices issued to the appellant survive for being decided and adjudicated upon by the Commissioner of Central Excise or any other Central Excise Officer having monetary competence for deciding the Show Cause Notices after the appellant s Appeal No. E/4576/83-C was decided by the CESTAT, New Delhi, vide order dated 15-11-2000? (b) Whether by the final order No. 513/2000-C, dated 15-11-2000, in Appeal No. E/4576/83-C, the Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rejected, against which the appellant preferred appeal before the Customs, Excise Gold (Control) Appellate Tribunal, New Delhi and the learned Customs, Excise Gold (Control) Appellate Tribunal passed a Final Order No. 513/2000-C, dated 15-11-2000 [2001 (130) E.L.T. 202 (Tri.-Del.)] and disposed of the said appeal with following observations. 3. We have carefully considered the matter. On hearing both sides with reference to the jurisdiction point we felt that the matter itself can be disposed off on the limited issue. We find that Board has issued a circular prescribing the monetary limit of the Assistant Commissioner in adjudicating the cases relating to demand under Section 11A of the Act. Accordingly, the Assistant Commissioner was not competent to adjudicate the matter raising the demand of duty more than ₹ 50,000, except in cases relating to approval of classification list and price list. We are convinced that this case is not of either approval of classification list or of price list. Under these circumstances, the Assistant Commissioner was not competent to adjudicate the matter since the demand of duty in this case is of ₹ 52 lakhs. In view of this m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication No. 2252/2005 before this Court which came to be withdrawn by the appellant with a liberty to prefer the departmental appeal before the learned Tribunal. That thereafter being aggrieved and dissatisfied with the communication containing letter dated 9-2-2005 of the Commissioner holding that he is competent to adjudicate the show cause notices, the appellant preferred appeal before the learned CESTAT being Appeal No. E/1277/2005. That the appeal was heard by the learned CESTAT on the issue whether show cause notices revived for adjudication and whether the case was remanded for being decided by the Commissioner or not. That two members of the Appellate Tribunal differed and the Member (Judicial) held that by passing the judgment and order dated 15-11-2000, when the learned Tribunal quashed and set aside the order passed by the Assistant Collector, which was passed on the show cause notices, there was no specific order of remand and therefore, as per the decision of the Tribunal in the case of M/s. Rajputana Steel Cast Pvt. Ltd. rendered by the Appellate Tribunal, Ahmedabad, which came to be confirmed by this Court vide judgment and order dated 22-7-2010 passed in Tax Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissing the appeal and holding that the Commissioner would have jurisdiction to adjudicate the show cause notices. 4.1 It is submitted that show cause notices came to be adjudicated earlier by the Assistant Commissioner/Collector and an OIO came to be passed against which the appellant preferred appeal before the learned Tribunal and the learned Tribunal by judgment and order dated 15-11-2000 allowed the appeal and quashed and set aside the order passed by the Assistant Commissioner/Collector on the ground that the Assistant Commissioner was not competent to adjudicate the matter. It is submitted that while passing the judgment and order dated 15-11-2000, there was no specific direction regarding remand or remitting the matter back the case for de novo adjudication and therefore, in absence of any specific direction regarding remand or remitting back the case for de novo adjudication, thereafter it is not open for the Commissioner to adjudicate the show cause notices de novo. It is submitted that as such a fresh adjudication is not permissible when the original order of adjudication have been quashed even on technical ground. 4.2 It is further submitted by Shri Gupta, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow the present appeal. 5. Present appeal is opposed by Shri Varun Patel, learned Counsel appearing on behalf of the respondent-Central Excise Department. It is submitted that as such at every stage the appellant has tried to delay the adjudication of the show cause notices. It is submitted that as such when earlier OIO was passed by the Assistant Commissioner and when the same was challenged by the appellant before the learned Appellate Tribunal, the OIO passed by the Assistant Commissioner came to be set aside solely on the ground that Assistant Commissioner was not competent to adjudicate the matter since the demand of duty is of ₹ 52 lacs i.e. more than monetary limit prescribed by the circular for adjudication by the Assistant Commissioner. It is submitted that therefore the Appellate Tribunal disposed of the said appeal by observing that the matter could be adjudicated by the competent adjudicating authority. It is submitted that therefore thereafter when the appropriate competent adjudicating authority was to adjudicate the said notices, the appellant preferred special civil application before this Court and the appellant was relegated to file the reply to the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd dissatisfied with the OIO, the appellant herein preferred appeal before the Commissioner (Appeals) which came to be discussed against which the appellant preferred further appeal before the learned Appellate Tribunal and the Appellate Tribunal passed the Final Order No. 513/2000-C, dated 15-11-2000 and disposed of the said appeal with following observations. 3. We have carefully considered the matter. On hearing both sides with reference to the jurisdiction point we felt that the matter itself can be disposed off on the limited issue. We find that Board has issued a circular prescribing the monetary limit of the Assistant Commissioner in adjudicating the cases relating to demand under Section 11A of the Act. Accordingly, the Assistant Commissioner was not competent to adjudicate the matter raising the demand of duty more than ₹ 50,000, except in cases relating to approval of classification list and price list. We are convinced that this case is not of either approval of classification list or of price list. Under these circumstances, the Assistant Commissioner was not competent to adjudicate the matter since the demand of duty in this case is of ₹ 52 lakhs. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajputana Steel Casting P. Ltd. (supra) that in view of the earlier judgment and order dated 15-11-2000 passed by the Appellate Tribunal by which the appeal preferred by the appellant against the OIO came to be allowed and the OIO passed by the Assistant Commissioner came to be set aside and there was no specific order of remand to the adjudicating authority for de novo adjudication, it is not open for the Commissioner to adjudicate the show cause notices de novo and it is submitted that as such fresh adjudication is not permissible when the earlier OIO came to be set aside, may be on technical grounds, seems to be attractive but has no substance. 6.7 The entire order dated 15-11-2000 passed by the learned Appellate Tribunal and the tenor of the order deserves consideration. It appears that while disposing of the appeal preferred by the appellant against the OIO vide order dated 15-11-2000 as such the learned Appellate Tribunal did not quash and set aside the OIO passed by the Assistant Commissioner. However, disposed of the said appeal by observing that the matter could be adjudicated by the competent adjudicating authority . That with the aforesaid observations the appeal cam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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