Quashed

Ballarpur Industries v. Custom Excise and Tax

Orissa HC19 Nov 2015WP(C)/26569/2011

Case brief

AI extract

What is this about?

The Court quashed an order and demand because the department failed to provide essential documents, specifically provisional assessment order copies and a B-13 Bond, preventing the petitioner from an effective response.

What did the court decide?

Impugned order and consequent demand quashed; petitioner directed to appear for a fresh application for necessary documents within four weeks; case to conclude within eight weeks.

19.11.2015 Heard Mr. J. Das, learned Senior Advocate for the petitioner-c ompany and Mrs. M. Padhi, learned Senior Standing Counsel for the Central Excise Department. Challenge in the present writ application has been made to an order da ted 30.06.2011 passed by the Assistant Commissioner, Central Excise, Customs and Service Tax, Bhubaneswar Division under Annexure-12.

An earlier order passed under Section 11-A of the Central Excise and S alt Act, 1944 against the petitioner-company was challenged before the CESTAT in Appeal No.A-7 15/Cal/98 and by order dated 20.07.1998 the matter was remanded to the First Appellate Authori ty on a finding that the principles of natural justice have been violated. The Lower Appellate Authority i.e. the Commissioner (Appeals), Guwahati, in turn, after hearing the parties by or der dated 14.07.1999 came to the following findings:

While passing the order original on 28.12.90, the AC was fully aware o f the position of the company and also the provisions of Sec. 22 of SIC(SP) Act. He ought to h ave stayed the proceedings until the matter was settled, by passing an exparte order against a closed unit does not help the department in any way. In fact there is no evidence that he ens ured receipt of the order either by the Govt. of Orissa or Chairman/Director of M/S TPM in the ir residential address. A copy of the order should have been pasted on the door of the factory with a panchnama. Not having resorted to any of the above requirements and not having abided by Sec.22 of SIC(SP) Act, he has made the present appeal liable for remand.

Consequently, the matter stood remanded to the Deputy Commissioner of Central Excise & Customs, Bhubaneswar Division. By notice dated 17.11.2004, the petitioner-com pany was noticed of personal hearing and by communication dated 29.11.2004, the petitioner-com pany responded to the said notice requesting the Department to provide copies of certain docum ents since the documents and orders which had been passed between January, 1985 and December, 1988 when the original company i.e. M/s. Titaghur Paper Mills No.3 was in operation and the p resent petitioner i.e. M/s. Ballarpur Industries Ltd. (BILT) had not taken over the said compa ny. It was also stated in the said communication that the orders were not traceable in the rec ords available with the present petitioner and since the said orders passed by the CESTAT and the Honble High Court were being relied upon by the Department in support of the impugned dema nd, it was requested that in the interest of justice, copies of the same may be provided to th e petitioner-company in order to enable it to file an effective and meaningful response. This request of the petitioner-company was dealt with by the Assistant Commissioner, Central Excise , Customs & Service Tax, Bhubaneswar Division in the impugned order, which reads as follows:

On receipt of the said letter the assessee instead of appearing before the aut hority had submitted a letter dated 25.07.2005 wherein they had repeated their request to supp ly them the copy of the relied upon documents as mentioned in the Show Cause Notice dated 19.0 5.1989. They had requested to provide them the copies of the following relied upon documents. (i) Copies of the orders passed by Tribunal and High Court. (ii) Copies of provisional assessment order passed by the proper officer under Rule 9B of the erstwhile Central Excise Rules 1944.

Although the request was noted in the impugned order, the Assistant Co mmissioner, Central Excise, Customs and Service Tax, Bhubaneswar Division held that since the documents sought for were either orders or judgments of CESTAT or High Court, the same were pu blic documents and hence need not be provided to the petitioner-company and could have been so ught for by the petitioner-company himself.

Mrs. Padhi, learned counsel for the Revenue submits that the contentio ns raised in the present writ application on merits can be dealt with in appeal and there is n o justification for the writ court to interfere in the matter since the Appellate Tribunal fin ally decided both facts and law.

Mr. Das, learned Senior Advocate for the petitioner-company, on the ot her hand, submits that he is confining his arguments to the violation of principles of natural justice and to the lack of adequate efficacious opportunity to respond to the show cause noti ce in absence of necessary documents which were sought for.

After having heard learned counsel for the respective parties and peru sing the impugned order as well as other documents appended to the present writ application, w e are indeed surprise by the fact that whereas the notice of personal hearing was granted to t he petitioner-company vide notice dated 18.07.2005 and the petitioner-company had responded to the same vide communication dated 25.07.2005 and requested for being provided with the docume nts for the reasons noted in the said communication yet, after span of nearly five years there after the impugned order came to be passed. Although we are in agreement with Mrs. Padhis cont

ention that the petitioner-company could have access the Tribunals and High Courts orders from the respective Tribunal and/or High Court but, insofar as the copies of the provisional asses sment orders under Rule 9-B of the erstwhile Central Excise Rules, 1944 were concerned as well as copy of B-13 Bond and Bank Guarantee are concerned, the same are obviously in the custody of the authority in question and, therefore, ought to have been provided to the petitioner-com pany.

Therefore, without entering into the merits of the petitioners claims, we are of the considered view that the petitioner-company has been denied an effective opport unity of responding and/or participating in the hearing in absence of the copies of the docume nts sought for. However, we are also of the view that the petitioner-company can have access t o the orders of the Tribunal and/or High Court from the authorities concerned but, the copies of the provisional assessment order as well as copy of B-13 Bond and Bank Guarantee ought to h ave been provided to the petitioner-company for its own verification and advancing contentions .

In view of our finding that principles of natural justice have not bee n complied with in course of hearing, we quash the impugned order under Annexure-12 and the co nsequent demand raised therein and direct the petitioner-company and/or its representative to appear before the Assistant Commissioner, Central Excise, Customs and Service Tax, Bhubaneswar Division on 07.12.2015 and make a fresh application before the authorities for the documents that may be required by it for the purpose of responding to the show cause notice and particip ating therein. We make it clear that such documents may be provided to the petitioner-company but, the petitioner-company shall make its own endeavour to obtain the necessary orders from v arious Tribunals and/or High Courts. Such documents may be provided to the petitioner-company within a period of four weeks from the date of first appearance and hearing of the case may be taken up immediately thereafter and the same may be concluded within a period of eight weeks therefrom. Nothing stated in this order shall amount to a determination of any issue raised he rein on merit and the authorities concerned shall be free to deal with the matter strictly in accordance with law on its own merit. With the aforesaid observations and directions, the writ application i s disposed of. Free copy of this order be handed over to the learned counsel for the Revenue. Urgent certified copy of this order be granted on proper application. .. I. Maha nty,J. ..... Dr.D.P. Choudhury,J.

Ballarpur Industries v. Custom Excise and Tax

Case brief

What is this about?

What did the court decide?

Ballarpur Industries v. Custom Excise and Tax

Case brief

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What did the court decide?

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