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TAXAP/503/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 503 of 2009
with
TAX
APPEAL No.570 of 2009
=========================================
COMMISSIONER
OF CENTRAL EXCISE & CUSTOMS DAMAN - Appellant(s)
Versus
SITARAM
GANAJI SAWARDEKAR - Opponent(s)
=========================================
Appearance :
MR
RJ OZA for
Appellant
MR JIGAR SHAH for MR BL NARASIMHAN for Opponent(s) :
1,
========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 28/04/2010
ORAL
ORDER
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
On
10th
March 2010, this Court had passed orders in the following terms in
both these appeals :
[1] Though
appellant revenue has proposed as many as four questions in this
tax appeal stated to be substantial questions of law, a plain reading
of the impugned order of Customs Excise and Service Tax Appellate
Tribunal (the Tribunal) dated 04th
August, 2008 indicates that the appeal of revenue has been dismissed
by the Tribunal only on the ground of proceedings being barred by
limitation as the extended period for assessment was not available to
the revenue. However, the impugned order of Tribunal nowhere
indicates
that any opportunity of hearing was granted to appellant revenue
in relation to this aspect before the Tribunal made the impugned
order.
[2] Hence,
admit. Following substantial question of law arises for
determination:-
Whether
on the facts and in the circumstances of the case, the Tribunal was
justified in law in deciding the issue of limitation without giving
an opportunity of hearing to appellant revenue on the said issue.
Notice
for final disposal returnable on 07th
April, 2010.
In
response to the notice, Mr. Jigar Shah, learned advocate appears on
behalf of the respondent.
Since
both the appeals arise out of common order made by the Tribunal,
they were heard together and are disposed of by this common
judgment.
Heard
the learned advocates for the respective parties.
The
learned Senior Standing Counsel for the appellant has reiterated the
submissions made earlier and argued that while dismissing the
appeals preferred by the appellant on the ground of limitation, the
Tribunal has not granted any opportunity of hearing in that regard.
On the other hand, the learned advocate for the respondents has
submitted that limitation being a question of fact, can be gone into
at any stage of the proceedings and has supported the impugned order
of the Tribunal.
A
perusal of the impugned order of the Tribunal shows that in
paragraphs 1 and 2 thereof, the Tribunal has recorded the facts of
the case. In paragraph 3, the Tribunal has recorded the presence of
the learned SDR and the fact that there is no appearance on behalf
of the respondent. The Tribunal has thereafter recorded the
submissions of the learned SDR on the merits of the case. In
paragraph 4 the Tribunal has recorded that it is not necessary to go
into the merits of the case and after recording certain facts has
dismissed the appeals on the ground that the show cause notice
should have been issued within the normal period of limitation, and
that, extended period of limitation could not have been invoked. On
reading the entire order, there is nothing to show that while
considering the question as to whether the extended period of
limitation could have been invoked the appellant has been called
upon to make any submissions in that regard. A perusal of the order
of the Commissioner (Appeals) shows that the appeals of the
respondents had been allowed on merits and not on the ground that
the show cause notice was time barred. In such circumstances, if the
Tribunal was inclined to dismiss the appeals on the ground of
limitation, the least it could have done was to give an opportunity
to the revenue to deal with the same. In absence of such opportunity
having been given to the appellant, the impugned order of the
Tribunal suffers from the breach of the principles of natural
justice and as such, cannot be sustained.
For
the foregoing reasons, the appeals are allowed. The impugned
order of the Tribunal is hereby set aside. Central Excise Appeals
No.334 of 2005 and 335 of 2005 are restored to the file of the
Tribunal. The Tribunal shall decide the appeals afresh in accordance
with law, after giving an opportunity of hearing to the parties.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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