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TMI Blog2018 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... vity other than blending with water. The appellant is, accordingly, liable to duties of excise on the product cleared by them which was admittedly not discharged - demand upheld. Appeal dismissed - decided against appellant. - Appeal No. E/215,834,1824/2009-DB - Final Order No. A / 10767-10769 /2018 - Dated:- 23-4-2018 - Mr. Justice Dr. Satish Chandra And Mr. C. J. Mathew, Member (Technical) For the Appellant : Mr. P.M. Dave (Advocate) For the Respondent : Mr. L. Patra (AR) ORDER Per: C J Mathew The first of these appeals are filed against order-in-original no. 20/COMMISSIONER/RKS/AHD-II/2008 dated 14th November 2008 of Commissioner of Central Excise, Ahmedabad-II. The dispute has a protracted history of litigation and involves clearances from 1993-94 to 1996-97 which is now before the Tribunal for the third time. 2. Owing to this peculiarity, and considering the turn of events, brief narration of the facts may not be out of place. Following searches carried out in 1997 at the premises of M/s Durant Chemicals Industries and subsequent investigations, show cause notice dated 2nd March 1998 was issued to M/s Maheshwari Dye Chem, M/s Durant Chemicals Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on each occasion and the present appeal is confined to duty liability of ₹ 15,52,586/- with equal penalty imposed on M/s Maheshwari Dye Chem. Liability of duty on the part of M/s Durrant Chemical Industries and the individual have since been set aside. 7. The second and third appeals now before us arise from orders of Commissioner of Central Excise (Appeals), Ahmedabad (order-in-appeal no. 20/(Ahd-II)/CE/ID/Commr (A)(Ahd)/2009 dated 20th January 2009 and order-in-appeal no. 388/(Ahd-II) CE/CMC/Commr (A)/Ahd/2009 dated 9th November 2009) both of which pertain to the sanction of refund of amount of ₹ 10,00,000 deposited during investigation and ₹ 1,00,000 deposited as condition for stay of operation of recovery during pendency of main appeal before the Tribunal. The claim for refund was sanctioned by the original authority after the Tribunal had remanded the matter back to the original authority which, having been set aside on appeal of Revenue by the first appellate authority, is before us on appeal of M/s Maheshwari Dyechem. The protective demand for recovery of erroneously sanctioned refund, on deciding to challenge the sanction before first appellate authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout ascertaining whether manufacture was undertaken by the appellant. According to him, this was sufficient to set aside the duty liability and penalty. 11. Learned Authorized Representative states that the findings of the adjudicating authority are very clear: that the unit had merely changed its name in January 1997 while continuing the existing business which was evidenced by statements narrated above and in the panchnama. He also drew attention to the specific findings of the original authority, based on receipt dated 20th September 1991 and delivery challan, that the stirrers with lifting device was with appellant before 1997 and for which depreciation was being claimed every year in their books of accounts; that addition of machinery as claimed by Learned Counsel would have reflected a higher value of assets in 1997 itself which is not apparent. It is also urged that the adjudicating authority has given clear findings to corroborate the reliance on paper slips. 12. On scrutiny of the panchnama dated 5th September 1997, it is taken note that stirrer machines with one homogenizer machine and one testing machine was found at the premises in Ahmedabad at the time of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the dispute would revert to the Tribunal on a fourth occasion after being set aside by the Hon ble High Court. Reiterating that, as Secretary of the Bar Association, he would, and could, force a boycott of the bench that was not inclined to acquiesce to his demands and, upon his exhortation in the court, he, along with other counsels, staged a walk out. 17. Therefore, before parting with the matter, our disquiet about the conduct and behavior in court and the manner in which the proceedings were sought to be perverted with such ill-grace must, with reluctance, find a place in the record. Generally, litigants are not personally present in court but are represented by counsels, both in acknowledgment of superior knowledge of legal process and as a mark of the assurance that the counsel will only act in the best interests of the absent litigant. A decision of the Tribunal is not the final word in the dispute and the road of appeal to the higher courts lies open a reaffirmation of that trust reposed by the litigant in the judicial system and the professional recourse to these by counsel. When counsels betray that trust to sacrifice the interests of the litigant at the altar of per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of righteous indignation did slip. As to that which was exposed, that is best left to those who can think things through. Rudeness may be forgiven, professional discourtesy can be overlooked but contempt for the judicial system can be tolerated only at the cost of the faith of citizens in peaceful settlement of disputes. 20. There is no material explanation for the exposive reaction except personal prejudice and rabble-rousing both of which are anathema in the hallowed precincts of the halls of justice. Mr. Paresh M. Dave chose to sacrifice his client and incited other counsels to abandon their clients without concurrence of and, worse, behind the back of clients who trusted their counsels for their ability, responsibility, diligence and dedication. Those who have reposed their fiscal future in responsible officers of the court must know of this perfidy for it is only they who can, in affirmation of their faith in the judicial process, insist on accountability for performance of their right to be heard in a dispute. The facts are simple enough: Mr. Paresh M. Dave insisted that taxability was the only ground on which he sought to represent the claim of the appellant. That appro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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