9911796707
TMI Blog2002 (12) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... /91-NRB, dated 8-8-91 passed by a Two Member Bench of this Tribunal in Appeal No. E/3444/90-NRB [Chander Lakshmi Tempered Glass Co. (P) Ltd. v. CCE, Chandigarh] in support of the preliminary objection raised by him. The above decision was rendered following an earlier decision of this Tribunal in Garden Reach Shipbuilders Engineers Ltd. v. CCE, Calcutta - 1987 (31) E.L.T. 545. The Bench before whom the preliminary objection was raised was not able to persuade themselves to take a hard-and-fast rule following the view taken in the cited cases. It was under these circumstances the issue was referred for consideration of the Larger Bench. 3.It was submitted on behalf of the Revenue that the appellant cannot be permitted to raise the issue with regard to show cause notice at this stage as no such objection was taken in their reply to the show cause notice nor before the adjudicating authority. Learned Departmental Representative sought to rely on a decision of the Madras High Court reported as of ACC Tuticorin v. Court of the Consumer Dispute Redressal Forum - 2000 (121) E.L.T. 604 and a decision of this Tribunal in the case of Sangameshwar Pipe Steel Traders v. CCE, Belgaum - 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant. In Chander Lakshmi Tempered Glass Co. Pvt. Ltd. v. CCE, Chandigarh the Tribunal took the view that the impugned order not having been signed by the adjudicating authority was not a valid order. In the above case the order was signed by the Collector on 16-4-90 and on account of his transfer the copy of the order approved by the Collector was issued after attestation. It was pointed out that the impugned order was an exact copy of the draft order approved by the Collector before his transfer. The contention raised by the assessee was accepted by the Bench following an earlier decision of the Tribunal in Garden Reach Shipbuilders Engineers Ltd. v. CCE, Calcutta - 1987 (31) E.L.T. 545. When we examine the facts of Garden Reach Shipbuilders Engineers we find that the facts are quite different from those available in Chander Lakshmi Tempered Glass Co. Pvt. Ltd. Paragraph 24 which is also quoted in Chander Lakshmi Tempered Glass Co. Pvt. Ltd. itself would show that the records of the case did not contain any order or copy of the order signed by the Collector himself. It is also relevant to note that in the above case personal hearing was not concluded on 18-10-82 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igned the corrected final draft order. Therefore, its further communication as attested by the Superintendent can only be taken as an administrative act. 9.Yet another decision relied upon by the learned Counsel for the appellant is Apple International v. CCE, Nhava Sheva - 2000 (120) E.L.T. 671. In the above case apart from the fact that there was violation of principles of natural justice, the appellant being not given due opportunity, copy of the impugned order served on the assessee was not signed by the Commissioner but that in attestation it is shown that he has signed the file copy. It is not clear from the order whether the Tribunal has examined the original file to verify whether it contained a copy of the order signed by the Commissioner. It is observed that an order of adjudication unless signed by the maker thereof, is not a valid document. The correctness of the above principle cannot be doubted. But the further question is if the order of adjudication has been, as a matter of fact, signed by the authority, the mere fact that the copy communicated to the assessee did not contain signature of the authority would affect its legality? In Richimen Silks Ltd. v. CC, Hyder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as valid notice. Reliance was placed on an earlier decision of the Tribunal in Punalur Paper Mills Ltd. v. CC, Cochin - 1987 (31) E.L.T. 770. It was a case where notice was issued by the Assistant Collector at the instance of the Collector under Section 28 of the Customs Act as amended by Customs (Amendment) Act, 1985. The show cause notice for a period beyond six months under that section has to be issued by the Collector. Admittedly the show cause notice was never signed by the Collector even though he had issued a direction to the Assistant Collector to issue such a notice. The appellant further placed reliance on a decision of the Calcutta High Court in Ovatape Fibres Pvt. Ltd. v. CC, Calcutta - 1994 (74) E.L.T. 509 in support of his contention on the show cause notice. It was a case where draft show cause notice unsigned and undated was served on the assessee within the period of limitation. It was held that by serving such draft show cause notice, it cannot be taken that the show cause notice was served within the period of limitation as contemplated under Section 110(2) of the Customs Act, 1962. None of these decisions on show cause notice relied on by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y served on it was not signed by the Commissioner. He placed reliance on a decision of the Madras High Court in ACC, Tuticorin v. Court of the Consumer Disputes Redressal Forum - 2000 (121) E.L.T. 604 and a decision of this Tribunal in Sangameshwar Pipe Steel Traders v. CCE, Belgaum. In the decision of Madras High Court, a learned Single Judge took the view that since the writ petitioners had submitted to the jurisdiction of Consumer Forum and participated in the process of enquiry it cannot later challenge the jurisdiction of the forum and its competency to maintain the matter. In Sangameshwar Pipe Steel Traders a Bench of this Tribunal held that objection regarding jurisdiction should have been taken when the show cause notice was served on them. Since the assessee had not taken objection even before the appellate authority it cannot be permitted to raise the issue before the Tribunal for the first time. The learned DR relied on two other decisions of this Tribunal in support of his contention that even if the copy of the show cause notice served on the assessee is not signed by the Commissioner, the notice cannot be treated as invalid if the office copy of the show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
