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TMI Blog2020 (5) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner vide letter F.No.VIII/1047/Commr/2004 dated 15.11.2018 (AnnexureN) and also quashing and setting aside show cause notice dated 05.05.2006. (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the 2nd Respondent herein from conducting adjudication of show cause notice F.No.VIII/1047/Commr/04 dated 05.05.2006 (AnnexureB) thereby staying adjudication of the show cause notice; (D) An exparte adinterim relief in terms of para 23(C) above may kindly be granted. (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted." 2. The facts in brief giving rise to the filing of the present petition are as follows: 2.1 Some where in the year 2002, the petitioner imported several consignments of different parts of mobile phones like battery, mother board, front cover, antenna, etc. The said products were imported through the Foreign Post Office (FPO) and were assessed to custom duties. The petitioner paid such duty on the imported goods. 2.2 It is averred by the petitioner that the Rules Regarding Postal Parcels and Letter Packets F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of entry, which were relied upon for proposing to enhance the value of the goods imported by the petitioner and others. Such request was not acceded to and the petitioner was advised to furnish final reply to the show cause notice vide letter dated 05.10.2006. The petitioner filed his written submissions on 26.10.2006 and raised a contention about breach of the principles of natural justice. 2.6 The Commissioner of Customs, Ahmedabad, thereafter, passed an order dated 20.12.2006 raising a demand for the differential customs duty for the goods contained in 258 parcels, severally and jointly from the petitioner and others, along with interest and penalty. 2.7 Being aggrieved, the petitioner and others approached the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as "the CESTAT"). Vide judgment and order dated 20.01.2017, the CESTAT held that there was breach of the principles of natural justice as the petitioner was not provided with the relevant documents so that he could get an opportunity to defend himself and accordingly, remanded the matter to the Commissioner (Customs), Ahmedabad for adjudication afresh within a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through its advocate. On 15.11.2018 the Superintendent of Customs from the Office of the respondent No.2 indicated that the petitioner should file final submissions without any delay as all the available documents had been supplied by their Office and the case would be taken up for final adjudication. 3.1 The stand taken by the adjudicating authorities aggrieved the petitioner as, according to the petitioner, the authority has not followed the directions issued by the CESTAT. Therefore, any adjudication which continues without complying with the directions issued by the CESTAT would amount to acting without jurisdiction and authority. He, therefore, approached this court with the aforementioned prayers in the present petition. 4. This court while issuing notice on 29.11.2018 had granted adinterim relief by granting liberty to the petitioner to seek adjournment in view of the fact that this court was in seisin of the matter and directed the authority to grant adjournment and post the matter only after the hearing of this petition. This direction has continued till date. 5. In response to the notice, the respondent No.2 appeared and filed its affidavitinreply d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproached seeking modification of its earlier order; however, nothing of this sort has been done at the ends of the respondents. Instead, in clear violation of the principles of natural justice, the respondents directed the petitioner assessee to complete final hearing of the adjudication, which is improper and illegal. 6.2 Learned advocate has taken us through the various documents to point out that the set of four documents, in relation to 122 consignments that were imported, have not been furnished by the respondents. The reason given by the respondents for nonsupply of the said documents is that they have not preserved the same. If that be so, the respondents could not proceed with the assessment. He has urged that inquiry in this case has started before the completion of three years and therefore, it was the duty on the part of the respondents to serve those documents. 7. Per contra, Mr. Parth Bhatt, learned senior standing counsel appearing for the respondents, has urged that this court would have no jurisdiction to issue the writ of prohibition in the given set of facts. It was submitted that it is only when the authority concerned has no jurisdiction and it con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Delhi, wherein it was held that the adjudicating authority was not justified in imposing duty jointly and severally on the Noticees. The CESTAT took note of the fact that relevant documents were not furnished by the respondents to the petitioner and other Noticees for their defence and accordingly, held that principles of natural justice demanded that the Noticees have to be provided with the relevant documents/evidences so that they could get an opportunity to defend themselves. 10. Considering all these aspects, the CESTAT remanded the matter to the respondentauthority for adjudication afresh, with the direction that the process shall be completed within four months from the date of receipt of the order and after giving necessary opportunity of personal hearing and submission of evidence to the petitioner. This court finds that the first personal hearing took place after about 10 months, which was in November 2017. Prior to this hearing, a communication was addressed to the respondent No.2 on 04.11.2017, whereby the authority concerned was reminded of the order passed by the CESTAT and a request was made for supplying the relevant documents. 10.1 It appears that on 07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 11. Evidently, in the affidavitinreply filed on behalf of respondent No.2, it has been admitted that all documents, as were directed by the CESTAT in its order dated 20.01.2017, have not been supplied to the petitioner. However, the respondent No.2 has taken the stand that the petitioner would not only be having the documents as sought for by him, but the authority would not take into consideration any of those document/s at the time of making assessment. 12. In the opinion of this court, the stand taken by the respondents is in clear violation of the directions issued by the CESTAT. The CESTAT, after due regard to the material placed before, held that the adjudicating authority was not justified in imposing duty liability on the Noticeeappellants jointly and severally. It also held the action of the respondent authority of not providing the Noticeeappellants the relevant documents/evidences so as to enable them to defend themselves to be violative of the principles of natural justice and accordingly, directed the respondent authority to furnish all the relevant documents and to complete assessment within the period stipulated in the order. 13. The court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal that in the given set of circumstances, it would be difficult for the authority to comply with the directions issued by the Appellate Tribunal and accordingly, seek amendment of its order. It is necessary that once any direction is issued by any Appellate Authority, the same is scrupulously followed by the authority against whom the directions are issued. 14.1 In the instant case, even without examining the reasons as to why the respondent authority was unable to comply with the directions issued by the CESTAT in its order dated 20.01.2017 in toto, the fact remains that the respondent authority has not supplied the documents, which it was asked to do so by the CESTAT, to the petitioner. Hence, the best course of action that was available to the respondent authority was to request the CESTAT to amend its earlier order by filing appropriate application within the stipulated period instead of insisting upon the petitioner to go ahead with the assessment. This can never be the spirit of assessment and the assessee concerned cannot be sent from pillar to post, particularly, on the very issue on which the challenge has been made. 15. This court is conscious of the fact that the dif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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