(Per : HONOURABLE MS JUSTICE SONIA GOKANI)
1. Following questions are raised by the Revenue for our consideration challenging the order of Customs Excise & Service Tax Appellate Tribunal dated 24.1.2011:-
"(a) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in remanding case of the respondent back to the adjudicating commissioner for deciding issue afresh and confirm the duty de-novo and to impose penalty separately on individuals?
(b) Whether in the facts and circumstances of the case, the impugned order passed by the Tribunal is an order passed in accordance with law?"
2. On hearing learned counsel for the Department and on having perused the material on record, it appears that the Tribunal after detailed consideration of the submission had remanded the matter to the original adjudicating authority following its own earlier decision in the case of this very respondent assessee.
3. It further emerges from the record that the Tribunal found that the Commissioner had confirmed the demand against the respondents and others jointly and severally. That was the reason why the Tribunal had remanded the matter back to the Commissioner. It is pointed out candidly by the learned Counsel for the appellant that in such group of matters identical question has been decided by this Court in Tax Appeal No. 1920 of 2010 and allied matters in the following manner:-
" We have perused the orders on record with the assistance of learned Counsel for the appellant. It appears that for alleged irregularly claimed rebate, proceedings were instituted for recovery of interest and penalty. Adjudicating Authority by an order dated 26th February, 2009 ordered recovery of rebate amount of Rs.1,24,19,869/-. He also ordered recovery of interest for such claim which he categorized as fraudulent. He also imposed penalty equivalent to the principal sum. Directions in this regard may be noted.
"(3) I impose a penalty of Rs.1,24,19,869/- (Rs. One Crore, Twenty Four Lacs, Nineteen Thousands, Eight Hundreds and Sixty Nine Only) upon M/s. Deep Textiles (I) C-1/63, Kailash Nagar, Sargrampura, Surat or
(ii) 1177, Ambaji Market, Ring Road, Surat under Section 11 AC of Central Excise Act, 1944. This amount shall be recovered from the said seven beneficiaries, namely Shri Mahesh Harlalka, Shri Rakesh Sharma, Shri Girdhari Dadhich, Shri Rasmi Patel, Shri Madan Jhanwar, Shri Ashok Jhanwar and Shri manohar Mali jointly and severally."
We may also notice that Adjudicating Officer imposed individual penalties ranging from Rs.5000/- to Rs.10,000/- on several individuals. Some of the beneficiaries referred to and mentioned in paragraph No.3 of the order of the Adjudicating Authority which has been reproduced herein above, challenged order before CESTAT. Before CESTAT primarily two contentions were raised. Firstly, that liabilities should have been fixed separately and could not have been joint. Another contention was that certain documents though demanded were not supplied. In this regard, the Tribunal while disposing of the appeals, remanded the proceedings to the Adjudicating Officer by passing following order:
"2. We have considered the submissions. In view of the fact that this Tribunal has already remanded the matter on the same issue and appeal filed in the same order, this matter also required to be remanded. We also find that the request made by the learned advocate regarding supply of documents is reasonable. Accordingly, we remand the matter to Original Adjudicating Authority to decide the liability for rebate and penalty separately in respect of different individuals and also supply the relied upon documents before passing the order. Further, the appellants shall be given proper opportunity to present their case before the final decision is taken."
Before us learned Counsel for the Revenue contended that the order of the Tribunal is erroneous. It was submitted that the documents were never demanded by the assessee. One application filed by an Advocate purporting to be representative of one of the assessee was not entertained since no Vakalatnama was produced.
We are of the opinion that no question of law arises. Tribunal merely remanded the proceedings for fresh consideration in light of the fact that individual liability was required to be fastened. Further, while doing so, it was provided that the revenue should supply the relied upon documents and give proper opportunity to the respondents to present their case.
Surely if the documents relied upon by the Department were already supplied previously, direction of the Tribunal would be innocuous. If on the other hand, such documents were not supplied, the Department cannot escape the liability to supply such documents without running the risk of exposing its action being opposed to principle of natural justice. Further the observations of the Tribunal to give opportunity to the respondent to present their case, also would not give rise any question of law.
In other appeals, the Tribunal has merely relied upon its previous order dated 8th January, 2009. Facts being similar, such appeals are also liable to be dismissed."
4. The facts being identical and the issues proposed are also the same, no independent findings are required to be given in the present appeal. Following the earlier findings, this Tax Appeal is also dismissed.
(Akil Kureshi, J. ) (Ms.
Sonia Gokani, J. ) sudhir Top