By TIOL News Service

MUMBAI, AUG 29, 2014: THE appellant is before the High Court against an order passed by the CESTAT dismissing their appeal.

It is submitted that the appellant had before the Tribunal challenged the order-in-original on three counts - First was with regard to revenue neutrality, second was with regard to the demand and which has been confirmed by the order-in-original but was barred by limitation and thirdly, there is no basis for calculation of overhead percentages alleged in the show cause notices. It is further submitted that in thecircumstances the minimum that was expected from the Tribunal was complete application of mind to the controversy, dealing with the submissions canvassed orally and in writing and by a reasoned order either uphold or reject them. Inasmuch as it is the submission of the appellant that in a five paragraph cryptic order, out of which paragraphs 1 to 4 contain the facts and referred to the oral submissions, the Tribunal has disposed of the entire appeal and against the Assessee; that this unsatisfactory and perfunctory manner of disposal of the Appeal by the Tribunal, which is the last fact finding authority, raises a substantial question of law.

The Revenue representative submitted that if one perused the order-in-original, then, the ultimate conclusion of the Tribunal cannot be faulted; that the grievance raised pertains to the form and not the substance and had the same conclusion been reached by an elaborate process of reasoning, then, theHigh court would not have interfered with the order under challenge as no substantial question of law arises for consideration. It is submitted that the Appeal be dismissed.

The High Court, at the outset, observed that the order-in-original was not passed on 25.06.2004, but on 29.01.2004 and this would demonstrate that the Tribunal was unaware of the date of the order-in-original and throughout.

Noting that the Assessee had raised several contentions before the Tribunal, the High Court observed –

"8. To our mind, the Tribunal was required to consider the issues raised in the Appeal in depth and render a complete finding. If a particular issue was pressed or was given up that should be indicated in the order of the Tribunal. We would expect the Tribunal, which is manned by both judicial and technical experts, to be aware of the seriousness of the adjudication and not take up the assignment lightly and casually. There is no specific target which has to be achieved nor could the Tribunal be expected to decide particular number of appeals during a calendar year. Therefore, undue haste is not at all called for. That results in miscarriage of justice and in a given case would result in vital issues of both sides being concluded in most unsatisfactory manner. We would expect the Tribunal to guide the Adjudicating Authorities so that they would properly adjudicate the cases with reasoned orders and after considering the evidence on record. It is this duty of the Tribunal which has been repeatedly emphasized and to be performed to the best of its ability."

Not being satisfied with the cryptic order (in the words of the High Court) passed by the Tribunal, the High Court admitted the appeal on the substantial questions of law as framed.

Nonetheless, after finding that both sides deserve to be given an opportunity to argue their case completely before the Tribunal, the High Court opined that it is not required to decide the merits of this Appeal and answer the questions though they are substantial questions of law.

Taking a view that the requirement of the Court going into all these issues would be obviated if as requested by the parties, the Tribunal decides the matter afresh on merits and in accordance with law and uninfluenced by its earlier order and conclusions therein, the High Court remanded the case back to the Tribunal.

The High Court also observed - Ordinarily we would not have granted such request and passed a wholesale order of remand, but in the facts and circumstances where it is not possible to ascertain from the Tribunal's order as to which of the contentions have been dealt with and considered that this is a fit case for setting aside the impugned order and restoring the Appeal to the Tribunal's file in its entirety.

The order of the Tribunal was quashed and set aside and the appeal was restored to the file of the Tribunal for a decision afresh.

In passing : Incidentally, the ROM application filed by the appellant (against the final order dated 31.07.2013) on the ground that in the interest of justice on the issue of revenue neutrality the appeal should be re-heard was dismissed by the CESTAT by holding thus –

"3. We find that after hearing the ld. CA for the appellants, the order was dictated in the court in the presence of the ld. CA. All the issues raised during the arguments have been considered while passing the order. The appellants seek review of the order on the ground that they want to argue the issue which was not argued at the time of hearing of the appeal. This cannot be considered as a mistake apparent on record." [See 2013-TIOL-1689-CESTAT-MUM ]

Also See : 2013-TIOL-1971-CESTAT-MUM

(See 2014-TIOL-1466-HC-MUM-CX)