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TMI Blog2014 (10) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... t he would present a macro view of the whole matter and it was is his submission that based on the macro view itself, the matter can be decided in favour of the appellants. After taking us through the matter for a while, he also fairly agreed that the Commissioner while passing the impugned order had given sufficient time to the appellants to present their case and hearings were held from November, 2011 to first week of March, 2012 and thereafter the impugned orders were passed. It was made clear that there was no grievance as far as the hearing conducted by the learned Commissioner at all. Nevertheless he submitted that after the hearings were concluded on 8-3-2012 with regard to the disputes relating to the products as well as parts, it was agreed during the personal hearing that appellants would submit the written submissions by 12-3-2012. Nevertheless, the appellant was waiting for summary of personal hearing. This was in view of the system followed by the Commissioner who used to get the draft records of personal hearing as and when hearing was concluded in the form of soft copy and appellants used to send back the same with their comments/suggestions. The record of personal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a detailed order and therefore, it would be appropriate that the matter be considered by the Tribunal. As regards the submissions on macro points, he submits that he would be able to show that this matter cannot be decided on the basis of a macro view and it is necessary to go into all the details and therefore, the Tribunal may have to spend considerable time to hear both the sides. 4. At this stage when we had almost reached the final conclusion that matter can be heard, the learned senior counsel for the appellants submitted that he has received instructions from the clients that it would be appropriate to remand the matter back to the Commissioner so that principles of natural justice can be observed and all the points submitted by the appellants in the rebuttal/rejoinder to the submissions made by the Revenue can be considered by the Commissioner and a detailed order can be passed. Learned counsel also relied upon the decision in the case of Orkay Silk Mills Limited and another v. M.S. Bindra and others [1988 (33) E.L.T. 48 (Bom.)]. He drew our attention to Paragraphs 7 & 10. For better appreciation, we reproduce the paragraphs below :- 7. But, apart from this, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order was pre-determined as alleged by the petitioners." Shri Dalal submitted that respondent No. 1 must have kept the earlier part of the order ready and dictated only the operative order giving his findings after returning to Delhi. It is impossible to accept the suggestion of the learned Counsel because respondent No. 1 has not filed any affidavit to that effect. In fact, I enquired from Shri Dalal as to why respondent No. 1 did not file any affidavit and after taking instructions, the learned Counsel replied that respondent No. 1 was made to compulsorily retire from service in October or November, 1985 and, therefore, he is not available to file the affidavit. The explanation offered cannot be accepted for more than one reason. In the first instance, there is no reason why respondent No. 1 did not file affidavit till he was made to retire from service. The petition was filed on July 16, 1985 and at the stage of admission, Shri Dalal sought 8 weeks time on the ground that respondent No. 1 has gone out of the country. Even after his return and at the time of confirmation of the interim order or at the time of filing the appeal, the respondent No. 1 did not file any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of affairs indicates that there is something wrong in the working of respondent No. 1 and it is not difficult to imagine why respondent No. 1 was made to compulsorily retire. It is unfortunate that in spite of this state of affairs, the respondents should think it wise to sustain the order passed by respondent No. 1. In my judgment, the action of a quasi-judicial authority like respondent No. 1 would shake the confidence of the public and the tax- payer in the administration of justice. On this Court alone, the order is required to be struck down as it is prepared not by respondent No. 1 alone but by someone else, who had no authority to do so. It is time that the Government of India investigate into the matter in greater depth and ascertain who is responsible for this mess. 10. It is necessary to reiterate that the quasi-judicial authorities exercising powers under the Act should remember that not only justice should be done but the parties who are affected by the adverse order should have a feeling that justice has been done to them. It is not enough for any authority to assert that justice is done without there being a show of justice. The rules of natural justice are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that this case is somewhat similar to the case of Orkay Silk Mills Ltd. and Another and when the Commissioner received the detailed rejoinder on 27-3-2012, he could not have passed the order on 30-3-2012/31-3-2012 considering all the rejoinders/rebuttals. Further he also submitted that he would be able to show that it is not the case by pointing out specific instances. The learned special counsel on behalf of the Revenue submitted that even though the observations of the Hon'ble Supreme Court of India did not come in the case of the very same matter in appeal, yet it would be relevant since the concerned officer who had passed the order in the case of Orkay Silk Mills was subsequently compulsorily retired and correctness of compulsory retirement came up before the Hon'ble Supreme Court. He draws our attention to the observations of Hon'ble Supreme Court which are extracted below :- Here, out of the three instances on which the Screening committee relied to dub the officer as a case of "doubtful integrity" the first is his action against M/s. Orkay Silk Mills. The fact is that it was the appellant who headed the operation. A task which unearthed such a huge sum of concealed excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said that the Court failed to see and consider the detailed observations of the High Court. He submits that order of the Collector in the case of Orkay Silk Mills has been passed in the year of 1985 and even electronic typewriters were a novelty and had very limited memory during the period and therefore, the matter had to be retyped when corrections were made and at present, because of computerization, the drafting and completing 300 or 400 pages order may not be a difficult task when compared to the situation in 1985. Once the Commissioner is satisfied about the correctness of certain observations/submissions, for reproduction of submissions and recording his observations thereon it may not take time at all. Further he also submits that the last date of hearing was 8-3-2012 and therefore, the Commissioner had 22 days to prepare the order which is definitely sufficient to prepare such an order. At this stage, the learned senior counsel for the appellants stated that in fact three orders were passed on the last three days of the month of March, 2012. 8. We have considered the submissions made by both the sides. 9. As regards decision on the basis of macro view, in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ensuring the arithmetical accuracy of computation. He stated that this averment is being made since on arithmetical inaccuracies, the case proceeding should not suffer at higher judicial forums for lack of clarity and agreement between the department and the assessee. As can be seen from the above paragraph, the written rejoinders were to be made (including written submissions) by 12-3-2012. When a query was raised by the Bench, the learned counsel submitted that the personal hearing drafts in soft copy form were received by them on 17-3-2012. Thereafter the appellants were to make corrections wherever necessary and submit the same back to the Commissioner. It is his submission that in this case the soft copy of the personal hearing was received by them on 17-3-2012 and without waiting for corrected version, the appellants submitted their rejoinder on 27-3-2012 for the products and on 30-3-2012 for the parts. Further he also submitted that final copies of the recorded personal hearing were received by the appellants only on 10-4-2012. 10. The question that arises is once detailed oral hearing was conducted and submissions were made on so many days that too after completi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. In the stay order passed by this Tribunal vide Misc. Order Nos. 25071-25082/2013, dated 24-1-2013 [2013 (293) E.L.T. 27 (Tri.-Bang.)], in Paragraph 5, this Tribunal had made the following observation :- 5. The learned counsel for the appellants, at the outset, questioned the propriety of the orders passed by the Commissioner. He submitted that, though all the written and oral submissions made by the learned Special Consultant for the Revenue were duly recorded by the Commissioner and considered in his orders, the written rejoinders filed by the counsel for the assessee were ignored by the adjudicating authority. He submitted that the impugned orders were passed with undue haste. He pointed out that the assessee had filed their rejoinders (written submissions) on 27-3-2012 and the Commissioner passed Order-in-Original No. 2/2012 on 30-3-2012 without considering the final written submissions. As regards Order-in-Original No. 4/2012, it was submitted that the assessee's final written submissions were received by the Commissioner on 31-3-2012 and the latter passed the order on the same date without considering any of such written submissions. According to the learned counsel, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of hearing the stay application and chose to consider the case on merits, it would not be appropriate to take a contrary view now. 13. At this stage, learned counsel requested that we should consider grounds of appeal before we take a decision. We proceed to do so. 14. The first submission is that the impugned order was passed in haste within two days of receipt of elaborate written submissions. We have already dealt with the issue in considerable detail and therefore, we feel that the point raised in this submission which is similar to the points which have been considered by us need not be considered. 15. The second submission is that final versions of minutes of personal hearings were provided to the appellant much after the order was passed. The record of personal hearing is useful for the quasi-judicial or the judicial authorities who hear the case. The record of personal hearing in our opinion is mainly for use of the authority who is hearing the appeal and just because the approved copy or the corrected copy was given to the appellants on 10-4-2012, it cannot be said that the Commissioner did not have the benefit of submissions made during the personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e carried out and whether any further comments/response is required from their side, they were shocked to receive the copy of the impugned order itself on April 12, 2012, which was apparently passed on March 30, 2012." 16. In the next paragraph, it has been stated that the sequence of events clearly show that even before the minutes of personal hearing were finalized and copies were provided to the counsel for the appellant, the impugned order was passed which gives an impression that conclusions had been reached in advance. In view of the clear submission made by the learned counsel today that it is not their case that this has resulted in violation of principles of natural justice, we would not go into further discussion on this issue. 17. Next submission is that there is non-application of mind to the elaborate written and oral submissions made by the appellant. As regards this issue, we have already observed earlier that whether the rejoinders which were submitted by the appellant were considered in the order or not can be decided only when the matter is heard finally. It would be unfair if any conclusion is reached at this stage especially in view of the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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