IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 2647 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= SHIVAM TEXTILES -A PROPRIETARY CONCERN OF PRAKASHCHANDRA -
Appellant(s) Versus COMMISSIONER OF CENTRAL EXCISE-I - Opponent(s) ========================================================= Appearance :
MR PARESH M DAVE for Appellant(s) : 1, MR KALPESH N SHASTRI for Opponent(s) : 1, =========================================================
CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI
and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 03/07/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA)
1. Heard learned advocate Mr. Paresh M. Dave for the appellant and learned advocate Mr. Kalpesh Shastri for the respondent. The appeal is admitted herewith.
1.1 Having regard to the compass of the matter and with the consent of learned advocates of both the sides, the appeal is taken up today itself for final hearing.
2. In the facts of the case, the following question of law arises for consideration of this court in the present appeal:
“Whether in the facts and circumstances of the case, the Tribunal committed a substantial error in allowing the appeal of the department ex- parte holding that assessee's appeal before the Commissioner (Appeals) under section 35 of the Central Excise Act, 1944, was time barred?”
3. The facts in the background are thus. The appellant assessee engaged in the business of manufacture of textile fabrics was served with a show cause notice dated 30.09.2004 issued by the Assistant Commissioner, excise. It was the case of the Excise Department that its officers had searched the appellant's premises on 08.07.2003 and again on 15.07.2003. In that they found certain quantity of yarn as well as the quantity of grey fabrics in the factory, which materials were manufactured by one M/s. PBM Polytex Ltd. and further that they were the materials stolen from the factory of PBM Polytex Ltd. The appellant was found to have utilized the said stolen yarn and fabrics for manufacture of grey fabrics and such grey fabrics were cleared under the challans whereas part of the stock was found lying physically in the premises, which were treated to be pending goods.
According to the Department the appellant had not paid duty on those fabrics which were already removed from the factory. These allegations were made on the basis of panchnama and the statement of the appellant recorded in course of the search.
3.1 The aforementioned show cause notice culminated into order dated 20.03.2006 of the Assistant Commissioner, Central Excise, confirming the demand of duty to the tune of Rs.2,40,500/-, which was already paid by the assessee, and penalty and interest was also imposed. The assessee preferred appeal before the Commissioner (Appeals) against that order passed by the adjudicating authority under section 35F of the Act, which was filed on 03.10.2006. As it was prima facie beyond the period prescribed in section 35F for presenting the Appeal, the Commissioner (Appeals0 by a notice issued to the assessee, asked him to show cause and explain as to why the appeal was filed on 03.10.2006 when the impugned order was passed on 20.03.2006.
3.2 It was the case and explanation of the assessee that the order dated 20.03.2006 was received by his clerk one Amratbhai Shankarbhai Prajapati, who did not inform the assessee about the order and the order remained under the drawer and was misplaced; that the assessee acquired knowledge of the order only when the notice pursuant to that order was received.
3.3 The Commissioner (Appeals) took view that the appellant received the order on 03.10.2006 and held the appeal before it was within time and entertained the appeal. The Tribunal, however, did not agree in the impugned order and ex-parte held that assessee's appeal was time barred.
4. A look at the provision of section 35 of the Act, which provides for an appeal before CIT(A) would show that it enables any aggrieved person to prefer appeal in respect of decision and order mentioned therein within 60 days from the date of communication of such order or decision. As per the proviso to the section a further period of thirty days is available, if the Appellate Commissioner is satisfied that the appellant had sufficient cause for not presenting the appeal within sixty days. Looking to the language of section 35 the period of sixty days will be reckoned from the date of communication of the order proposed to be challenged. It is from such date namely the date of communication of the order the period of limitation would start. From such date the total time period available for preferring the appeal is 90 days.
4.1 The Tribunal held on the issue of limitation as under and accordingly allowed the appeal of the Department:
“The respondent are not disputing that the order dt. 20/03/2006 has been received in their office before 6/4/2006. On the ground that the order was misplaced by the clerk of the respondent firm, the commissioner does not acquire power to condone the delay beyond the permissible limit. Under these circumstances, the Commissioner (Appeals)'s finding “ therefore, I have every reason to believe that the order was received only on 3/10/2006 by its proprietor” is not relevant. By this finding he has, in effect, condoned the delay beyond what is provided in the statute. This is contrary to the letter and spirit of the provisions of Section 35 prescribing the time limit. Commissioner (Appeals) should not have admitted the appeal and therefore the order of the Commissioner (Appeals) is not legal and proper. Accordingly, the order of the Commissioner (Appeals) is set aside and order of the Original Authority is restored.”
5. Considering the case of the appellant herein before the authorities that though the order of Assistant Commissioner was dated 20.03.2006, it was received in his office on 06.04.2006 by the clerk of the firm received it, who did not inform the proprietor – assessee about it, the moot question before the Tribunal was that what could be said to be the date of communication of the order. The issue of limitation was dependent thereon. Not only that the Tribunal decided the issue of limitation without hearing the assessee. While it was open to the Tribunal to arrive at its own findings it ought to have done the same only after giving opportunity of being heard to the assessee and not ex-parte. Observance of natural justice and affording hearing to the respondent was sine qua non for the Tribunal in its adjudicatory process.
6. Looking at it from another angle the question of limitation considered by the Tribunal was in the facts of the case a mixed question of law and facts. The starting point of limitation under section 35 was the date of communication of the order which was required to be decided with reference to the facts pleaded by the assessee. In other words the question of limitation was inextricably linked with the factual plea. Therefore also, it was not only necessary but was indispensable for the Tribunal to decide the same only after bi-parte hearing and after giving the opportunity to the other side.
7. In the above view, it is proper to remit the case back to the Tribunal so that the Tribunal can consider and decide the matter afresh. Accordingly, we remand the case to the Custom, Excise and Service Tax Tribunal, West Zonal Branch, Ahmedabad and direct the Tribunal to decide Appeals Nos. 26 of 2007 and 27 of 2007 again and pass a fresh order after bi-parte hearing after giving notice to the parties and after hearing them.
8. It is clarified that as the matter is being remanded for fresh consideration by the Tribunal, we have not gone into the merits, nor have expressed any opinion on the merits.
9. As per above discussion and to the above extent, the question of law formulated above is answered in the affirmative.
10. The present appeal is allowed accordingly.
(V.M. SAHAI, J.) (N.V. ANJARIA, J.) (SN DEVU PPS)