TaxTMI 
TaxTMI 
2019 (8) TMI 1366
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....rder dated 30th November, 2010 made by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in the appeals instituted inter alia by Twenty First Century Wire Rods Ltd., (Assessee) to question the orders made by the Adjudicating Authority under the provisions of the Customs Act, 1962 and the Central Excise Act, 1944. It is the contention of the Commissioner that the CESTAT was not justified in observing that there was failure of natural justice before the Adjudicating Authority and on that ground remanding the matter to the Adjudicating Authority. 3. The Custom Appeal Nos.1 of 2011, 2 of 2011 and Excise Appeal Nos.2 of 2011, 3 of 2011, 3 of 2013 and 4 of 2011 have been instituted by the Assessee again, to question the common Judgment and Order dated 30th November, 2010 made by the CESTAT to the extent this common Judgment and Order whilst setting aside the order of the Adjudicating Authority and remanding the matter to the Adjudicating Authority for fresh consideration, directs retention of pre-deposit amount with the CESTAT. 4. Accordingly, it is only appropriate that both these set of appeals, which in any case were tagged together, are taken up for consideration and ....
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....earlier the Assessees are not present, we have, ourselves examined the challenges raised by the Assessees in the appeals instituted by them. The only challenge raised by the Assessees is that once the CESTAT set aside the orders of the Adjudicating Authority on the ground of failure of natural justice and remands the matter to the Adjudicating Authority for fresh consideration, the CESTAT, ceased to have any jurisdiction to direct the retention of the pre-deposit amount. The Assessees contend that in such a situation, the CESTAT had no option but to order the refund of the pre-deposit amount. The Assessees, therefore, contend that the part of the impugned judgment and order of the CESTAT directing the retention of the pre-deposit amount is in excess of jurisdiction and therefore, warrants interference. 8. The appeals instituted by the Commissioner were admitted on the following substantial questions of law :- A) When the Tribunal arrived at the conclusion that the Respondent had been granted hearing before passing the Order by the Commissioner, whether any direction for remand could have been made ? B) When the Tribunal notes that the adjudication order does not expressly refe....
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....oncluding that there was any failure of natural justice so as to warrant setting aside of the orders of Adjudicating Authority and consequent remand to the Adjudicating Authority for fresh adjudication ? 11. If the aforesaid substantial question of law is to be answered against the Commissioner, only then the second substantial question of law which would arise in the appeals instituted by the Assessees would be whether the CESTAT had jurisdiction and in any case was justified in ordering the retention of the pre-deposit amount after setting aside the order of the Adjudicating Authority and remanding the matter to the Adjudicating Authority for fresh decision ? 12. On the first issue, we find that the CESTAT in paragraph 14 of its impugned judgment and order has recorded that the order of the Adjudicating Authority demonstrate that it has made an extensive examination of the case in hand and examined every material fact with the evidence gathered as well as the statements recorded in the course of investigation. The CESTAT has further recorded that the Adjudicating Authority after granting fair opportunity of hearing to the parties, came to the conclusion that not only there was ....
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....in the adjudication order does not make that fatal nor require full waiver of the pre-deposit amount on the face of fraudulent transactions leading to loss of customs duty and wrong availment of CENVAT credit which have not been disputed. Thus, while we are inclined to remand the appeals for fresh decision by the adjudicating Commissioner, we are of the view that some amount of pre-deposit should be insisted upon to secure the government revenue and also to ensure cooperation of all the appellants to ensure fresh adjudication at an early date. Our view for directing partial pre-deposit find support from the decision of the Hon'ble Punjab & Haryana High Court in the case of Shiv Sewa Sadan Vs. CESTAT, Delhi, 2010(254) ELT 249 (P&H) which reads as under : ......................." (Emphasis supplied ) 15. From the aforesaid, it is apparent that the CESTAT has chosen to set aside the orders of the Adjudicating Authority and order a remand to the Adjudicating Authority for fresh consideration, on the following two grounds :- (a) that clients to whom Shri Rawal, learned Senior Advocate who was appearing in the matter, was not granted adjournment and fresh date of hearing; (b) that ....
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....rt has held that the principles of natural justice cannot be applied in a straight jacket formula. Further, it is for the party which complains of failure of justice to demonstrate the consequent prejudice. This decision also holds that where the Court/Tribunal came to the conclusion that non supply of the inquiry report in disciplinary proceedings would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment or mechanically set aside the order of punishment on the ground that the report was not furnished. 20. In State Bank of Patiala (supra), the Hon'ble Apex Court has held that while applying the rule of audi alteram partem, the Court/Tribunal/Authority should always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. This objective which should guide them in applying the rule to varying situations which arise before them. There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may....
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....n which the CESTAT itself records that the Adjudicating Authority has made extensive examination and after granting fair opportunity of hearing to the parties came to the conclusion that there was violation of provisions of the Customs Act, 1962 and Central Excise Act, 1944. 24. Accordingly, even the second reason/ground cited by the CESTAT according to us is quite unsustainable. 25. Since, the order of remand was based upon only the aforesaid two grounds and since, we have found that both these grounds were not at all germane or even sufficient for ordering a remand, we set aside the impugned judgment and order of the CESTAT and restore the appeals instituted by the Assessees to the CESTAT for fresh evaluation in accordance with law and on their own merits. This course is necessary, because the CESTAT has not at all examined the appeals on merits. 26. Since, we answer the first substantial question of law in the appeals instituted by the Commissioner, in favour of the Commissioner, and against the Assessees, there is really no necessity to decide the second substantial question of law which arises in the appeals instituted by the Assessees. 27. However, we may note that the CE....