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J.K. Leatherite Pvt. Ltd. Vs. Collector of Central Ex. - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1996)(83)ELT467TriDel
AppellantJ.K. Leatherite Pvt. Ltd.
RespondentCollector of Central Ex.
Excerpt:
1. this case has had a chequered history, right from december, 1990 when the pre-deposit of duty levy of rs. 1,08,61,529.34 p. and penalty of rs. 40 lakhs imposed upon the appellants by the collector of central excise, chandigarh was waived and recovery stayed by order nos. s/402 to 406/90-nrb, dated 19-12-1990, on the prima facie ground that the order which appears to have been passed on 2-7-1990 was without jurisdiction as the adjudicating authority had relinquished charge of the chandigarh collectorate on 17-4-1990 i.e. prior to the date of passing of the order. at that stage, the learned dr was not in a position to show to the bench, the original order passed by sh. gowri shankar, who was the collector of central excise, chandigarh upto 17-4-1990 and he could only show a rough draft.....
Judgment:
1. This case has had a chequered history, right from December, 1990 when the pre-deposit of duty levy of Rs. 1,08,61,529.34 P. and penalty of Rs. 40 lakhs imposed upon the appellants by the Collector of Central Excise, Chandigarh was waived and recovery stayed by Order Nos. S/402 to 406/90-NRB, dated 19-12-1990, on the prima facie ground that the order which appears to have been passed on 2-7-1990 was without jurisdiction as the adjudicating authority had relinquished charge of the Chandigarh Collectorate on 17-4-1990 i.e. prior to the date of passing of the order. At that stage, the learned DR was not in a position to show to the Bench, the original order passed by Sh. Gowri Shankar, who was the Collector of Central Excise, Chandigarh upto 17-4-1990 and he could only show a rough draft initialled by the officer and a cyclostyled copy marked as 'office copy' signed by, some official 'for Collector'. The main appeals were fixed for hearing on the next date i.e. 19-12-1991 on which date, the Bench recorded as follows - "At the outset the learned CDR filed a copy of the telex No. l/C/90 dated 18-12-1990 received from Sh. S.P. Srivastava, Collector of Central Excise, Chandigarh and stated that according to this telex, the Collector who succeeded Shri Gowri Shankar, namely Shri S.P. Shrivastava had taken charge from Sh. Gowri Shankar on 17-4-1990.

The learned CDR also filed a photocopy of the draft order dated 16-4-1990. She stated that this is the order passed by the learned Collector Sh. Gowri Shankar and bears his full dated signatures and the date shown is 16-4-1990.

In response to a query from the Bench, she reiterated that this is the order which was passed by Sh. Gowri Shankar while he was still in charge of the Chandigarh Collectorate and it was passed on 16-4-1990 as evident from the date below the signature.

In response to further query from the Bench that since it appeared to be a draft order whether any further order was passed, she stated that this is the only order signed by the Collector in the file and thereafter only the copies were made out by cyclostyling and issued under the attestation signatures of a subordinate officer.

In response to further queries with reference to the letter at page 214 in which the Inspector of Central Excise had called for supply of information regarding case of lands, building, plant and machinery from M/s. J.K. Rexin Pvt. Ltd., Mehtapur on 25-4-1990. She stated that from the file number shown there appears that this Misc.

information has been called for from another file." "The learned senior advocate stated that a cursory glance at the photocopy of the draft order of the Collector and its comparison with the copy of the order supplied to them shows that there were some serious discrepancies including the one at pages 17 and 18 of the cyclostyled copies supplied to them and page 27 of the photocopy; and the operative portion of the order at page 36 of the cyclostyled copy of the order and last page (page 59) of the photocopies.

Since even a cursory glance brings out these serious discrepancies, he would request that the department may state the factual position clearly in details and he would like to have an inspection of the departmental case records.

The learned CDR also stated that in the circumstances, she would also require some time to get in touch with the concerned Collectors and get the copies further compared. She undertakes to file a Certified copy of the 'file order' dated 16-4-1990 produced to-day.

The Bench thereupon directed the department to file an affidavit stating the factual position.

The department is allowed time upto first of February 1991 to file the affidavit and the appellants are allowed a further time of 15 days from the date of receipt of the copy of the affidavit to file counter-affidavit. The appellants are also allowed to inspect the records.

The matter is adjourned to 29-3-1991 as a part-heard matter to be taken up as the first regular matter." 2. The case was listed again on 20-9-1991 when the Bench on hearing both the sides, directed Shri Gowri Shanker to appear before them and explain certain discrepancies between the draft order signed on 16th April 1990 and the copy of the order dated 2-7-1990 communicated to the appellants. Misc. Order No. 300-91 passed on that date is reproduced below - "In continuation of the submissions made on 19-12-1990 the learned counsel drew attention to the discrepancies between the so-called draft order signed on 16-4-1990 and said to be the final order as signed by the Collector of Central Excise Sh. Gowri Shankar before handing over the charge of the Collector of Chandigarh to his successor and the copy of the order dated 2-7-1990 which had not been signed by the Collector but merely attested by another officer and issued to the appellants. In this connection he drew attention to their request made on 19-2-1990 and their letters dated 19-5-1990, 9-6-1990 and 15-6-1990 as also to the information supplied by them in response to the department's letter dated 25-4-1990 and stated that the draft order which was the so-called final order signed before relinquishing charge contained the figures supplied by them in response to the letter of 25-4-1990 and therefore, it could not be available with the department before this date. He also drew attention to the lines which were missing in the order from page 27 but found in the copy of the order supplied at pages 97 and 98.

2. He also pointed out that in the draft order in the operative portion the sub-paras g, h and i had been struck off. But in the copy supplied sub-para i, which mentions the penalty amount of Rs. 50,000/- appears, and this is a very material difference.

3. This apart from the fact that corrections appears to have been done in different inks and at different times and had not been initialled and a copy had been supplied which has not been signed by the Collector and the supplied copy is dated 2-7-1990 which is subsequent to the relinquishment of charge by Sh. Gowri Shankar, the adjudicating officer.

4. The learned counsel stated that it appear from these facts that the draft order or the so-called final order said to have been passed by Sh. Gowri Shankar before handing over the charge of Collector is not identical with the copy of the order supplied to the appellants and is different from it in material aspects.

5. In the circumstances it is also apparent that the final order was not passed on 16-4-1990 as asserted by the department but on a date subsequent to 17-4-1990 and in all probability subsequent to 25-4-1990.

6. Hence as Sh. Gowri Shankar was not the Collector of Central Excise, Chandigarh on the date on which the final order appears to have been passed - a date which has not been disclosed, the order was not passed by the proper officer having jurisdiction and was liable to be struck out on that ground alone. The Tribunal has taken note of similar situations where an order not signed by the Collector or adjudicating authority but only attested by a subordinate had been supplied and the Tribunal has set aside such an order and remanded the matter'as apparent from the Order A/431 /91-NRB, dated 8-8-1991.

7. They would also like to draw attention to another order of the NRB reported in 1990 (30) ECR 25 wherein also the order was set aside and the matter remanded. In other words, the Tribunal has set aside the order and remanded the matters even in circumstances where the draft orders and the final orders were similar whereas in this case the so-called final draft and the copy of the order are not even similar and are different in material aspects and therefore, the order is neither legal and nor proper and is required to be set aside.

8. Learned CDR stated that Sh. Gowri Shankar, the adjudicating officer has since filed an affidavit and annexed a copy of the order passed by him to this affidavit and the same has been filed by the department on 31-1-1991 before the Tribunal.

9. However, in view of the submissions made by the learned counsel regarding the above and discrepancies noticed, she has nothing further to say except that the copy which has been annexed to the affidavit of Sh. Gowri Shankar and described as the order passed by Sh. Gowri Shankar also differs slightly from the copy of the order in the Collectorate's records, copy of which had been earlier filed before the Tribunal under the attestation of JDR, Shri S.K. Sharma in respect of a few lines at page 27. However, in view of the affidavit filed by the learned Sh. Gowri Shankar, adjudicating officer, she leaves the matter to the Bench.

10. In view of the submissions made before us by both sides and the records before us including the affidavit of Sh. Gowri Shankar, we would like Sh. Gowri Shankar to appear before the Tribunal and explain the discrepancies and state clearly on which date he had passed the order finally. We therefore, direct the Collector, Sh.

Gowri Shankar to appear before the Tribunal on a date to be intimated for which notice shall be issued by the Registry." 3. On 24-1-1992, the learned CDR placed on record a letter dated 20-1-1992 and a telex dated 22-1-1992 received by her from Sh. Gowri Shankar expressing inability to appear to-day due to administrative exigencies such as observance of International Customs Day. The Bench noted that the presence of the Collector was essential in view of the grave charges and that he should have appeared and explained the discrepancies to the satisfaction of the Bench in view of sufficient notice. The Bench disapproved of the adjournment request. However, it reluctantly adjourned the matter to 6-2-1992 to ensure the presence of the Collector. This opportunity was afforded to the department by way of a last chance. On the next date of hearing i.e. 6-2-1992, once again the Collector did not appear but merely sent a telex dated 5-2-1992 to the learned CDR seeking further adjournment direction. The Bench by its Misc. Order No. 61/92, dated 17-2-1992, observed inter alia - "We take a serious note of the attitude and approach of Sh. Gowri Shankar which prima facie leaves much to be desired. Since we had already mentioned in our last order that the adjournment was being granted by way of a last chance and he has not availed of the same, we feel that a more serious view was called for. We, therefore, direct the Registry to issue notice to Sh. Gowri Shankar, Collector of Customs (Prev.) Bombay asking him to show cause to the Tribunal as to why proceedings for contempt of this Court should not be initiated against him. Notice is returnable by 3-4-1992." 4. The Bench on being informed on 3-4-1992 that Sh. Gowri Shankar had moved the Hon'ble Delhi High Court, directed the department to obtain and file a copy of the High Court order within a fortnight. The learned counsel for the appellants Shri M.A. Rangaswamy drew the attention of the Bench to certain decisions of the Tribunal wherein in similar situations, the impugned orders were set aside and the cases remanded and submitted that these appeals may also be disposed of on the same lines. The matter was adjourned to 14-5-1992 for production of case records by the department on which date the stay order dated 24-3-1992 of the Delhi High Court in Civil Writ Petition 1176/92 filed by Sh.

Gowri Shankar was produced before the Bench. The order of the High Court is as under - "Put up this case after the decision of the Supreme Court in SLP No. 4320/91 CCE v. Kanpur Bottling Co. Pvt. Ltd. In the meanwhile the operation of Annexure 7 including notice to show cause issued by the Asstt. Registrar on 21-2-1992 is stayed".

5. The Bench adjourned the matter to 18-6-1992 for clarification on the point regarding stay of proceedings as neither side was able to state whether notice of the writ petition was served on the Tribunal's Registry and only letters dated 27-3-1992 and 24-4-1992 addressed by Sh. Huzefa Ahmadi learned advocate for Sh. Gowri Shankar had been received by the Registry. Inspection of records including copies of the writ petition was permitted by order dated 29-7-1992. On 15-9-1992, the learned counsel for the appellants, reiterated their plea for disposal of the appeals independently of the proceedings initiated in the High Court, in view of the likely delay in disposal by the High Court in view of the pendency of the Kanpur Bottling case in the Hon'ble Supreme Court. By order dated 24-11-1992, the Bench directed the learned CDR to file copies of relevant notings in the case file with a copy to the other side and passed the following order - "Learned CDR stated that in view of her submissions before the Bench on the last occasion, she has since sought instructions of the higher officers of the Board.

It was felt that since in the Writ petition filed by Sh. Gowri Shankar only CEGAT has been made a respondent and not the CBEC, it is upto this Tribunal to the take such course of action as deemed appropriate.

She would however like to draw attention to the unusual feature which had come to her notice in the matter of filing of the Writ petition by Sh. Gowri Shankar that he had neither obtained pre facto nor post facto sanction of the Board or Ministry for moving the Hon'ble High Court or filing a Writ petition. Furthermore, it was also unusual that no copy of the Writ petition or notice thereof were served even on this Tribunal although it was made a respondent and it was only when the matter was brought to the notice of this Tribunal by the appellant that the Tribunal directed the Registry to check and report; and the Registry had reported that no copy of the Writ or the notice had been received; and thereupon the Bench directed it to obtain the copies.

Learned Advocate thereupon stated that in some other cases adjudicated by Sh. Gowri Shankar, Collector of Central Excise, similar issue had arisen for consideration namely whether the order passed was a valid order as understood in law and in this connection he would draw attention to the case of New India Dyeing and Finishing Mills reported in 1992 (59) E.L.T. 418 and other cases cited by him. In the light of the ratio thereof, it may be considered whether it is possible to delink this case from the situation arising out of filing of the Writ petition by Sh. Gown Shankar in the High Court with reference to the notice issued to him by this Tribunal in this matter.

It was his submission that although this Bench has already granted them a stay of operation of the order purported to have been passed by Sh. Gowri Shankar. It may be recalled that the order as communicated to them by the Collectorate under the attestation of an Asstt. Collector dated 2-7-1990 did not bear the signature of the Collector whereas the affidavit filed by Sh. Gowri Shankar refers to the so-called order found in the case records of the Department although dated 16-4-1990 appears to be a sort of draft order in view of large scale cuttings and changes towards which attention of this Bench had been drawn, and which contained material substantively different from the contents of the so-called order communicated to the appellants under the attestation of the A.C. He would also like to mention that although in some cases various Benches of this Tribunal have deferred consideration of the matter once a higher forum had been moved in the type of situation which had arisen as a result of non-appearance of Sh. Gowri Shankar before this Tribunal to clarify the position with reference to the document found in the case records vis-a-vis the document supplied to them and his affidavit and in view of the inability expressed by the Departmental Representatives themselves to explain the matter and which according to the D.Rs themselves could best be explained by Sh. Gowri Shankar personally his prayer was that this Tribunal may consider the situation as a whole and if in its opinion a stage has been reached where some decision in the case itself may have to be taken, his prayer would be that such an order may be passed and the matter may be remanded. This may perhaps be the only way out of the impasse in the complicated situation which has arisen.

Ld. CDR stated that while passing any order, it has to be kept in view as to the implications if any and the consequences which may follow in view of Sh. Gowri Shankar Writ petition pending in the High Court. She further stated that in view of the observation of the Court she is willing to file the photocopies of the relevant notings in the case file.

In view of the above submissions, we direct the Ld. CDR to file copies of the relevant notings within a fortnight with a copy of those notings to the other side.

L.d. Counsel states that he reserves the right to make written or oral submissions after receiving the copies of the notings.

In view of the above position, we reluctantly adjourn the matter and post it for mention and further orders if any on a date to be notified in consultation with the Bench." 6. The Managing Director of the appellant company, filed an affidavit dated 29-12-1992 in response to the notings in the case file. Relevant extract of the affidavit reads as under - "That as per order of the Hon'ble Bench on 19-12-1990, the appellants were given inspection of the relevant file of the Collectorate through their advocate and it was noted that in the correspondence side of the file, there was no indication therein regarding the date on which the Collector Sh. Gowri Shankar had passed the purported order. The purported order itself, had been seen by the Hon'ble Bench on 18-12-1990 at the hearing of the stay application and the Hon'ble Bench in its order dated 19-12-1990, was pleased to observe that there was only a rough draft initialled by Sh. Gowri Shankar.

That without anyway desiring to cast any doubt on the authenticity of the notes that have been made available I wish to submit only that it is relevant to note that the material is now being seen by the Hon'ble Bench quite sometime after the file has been with the department and also in the hands of the then Collector Sh. Gowri Shankar and other officers, after the appellants including myself had specifically requested in the Memorandum of appeal vide ground B on page 25 that the file should be produced before the Hon'ble Bench.

That it appears from the notes that there is no indication whatsoever that the then Collector, Sh. Gowri Shankar after having signed the purported order on 16-4-1990, as claimed by him had given any direction on the notesheet side of the file that the carder as passed by him should be issued, or that it should be faircopied and issued or any such other direction to the persons who despatched, such order. In the absence of any such direction on the notesheet side of the file it would seem that there is no direction to issue the order by the officer who passed the order and which direction, is in my respectful submission, an essential stage for the validity of an order. Where there is only a draft, there would be a direction for fair copy followed by signed the fair copy and ordering its issue. This would be the equivalent of pronouncement in open court as the latter course may not be possible in departmental proceedings.

That I am led to think that there is usually a direction to issue the final order on the note-sheet side to a subordinate officer as 1 also find that in the present case also such a direction was given by a successor Collector on 5-6-1992.

That the notes in the file end abruptly on 15-3-1990. A fresh page is started regarding page 314/Receipt and this note is recorded on 4-6-1990. From the previous note dated 15-3-1990, it appears that the correspondence dealt with was at pages 228 to 241/C. In fact immediately after the note dated 15-3-1990 there is an entry referring to page 245/C but that is struck off. There is no indication of what happened to the pages 245 to 314/C even though the pages had been numbered on the note-sheet side consecutively as 16 and 17. The file, therefore, gives the impression that several pages on the notesheet side of the correspondence side are missing.

That the letter received from the appellants dated 19-5-1990 in the Collectorate's office was not brought to the notice of the successor Collector till 4-6-1990 and the first statement that an order was passed on 16-4-1990, is on 4-6-1990. No action in any case appears to have been taken from 16-4-1990 upto 4-6-1990 when the file was put up to the Supdtt. The further note also dated 4-6-1990, evidently by the Supdtt. indicates that possibly the practice is to get a fair copy signed by the officer who passes the order in the file, for issue of the fair copy. This is evident from the note which states that the case had been adjudicated on file although the same has not been communicated to the party since order in original (in fair) is yet to be signed. Surprisingly there is no suggestion in the Supdtt.'s note regarding how this signing of the fair copy is to be achieved as no fair copy had been made even on that date. The Supdtt. has recommended only that no action was warranted on the party's letter.

That it fell to the lot of the Collector (J) evidently the successor to Sh. Gowri Shankar for adjudication purposes to order issue of the order (the expression used is not legible) as attested copy if not already issued.

That on a simple understanding of such papers, it appears that this file was not in the hands of the dealing person nor the Supdtt. from the 15th of March 1990 upto 4-6-1990 nor was the purported order dated 16-4-1990 in his file till 4-6-1990. The Hon'ble Bench may very kindly draw such inferences as it may whether the purported order itself was in fact, signed on 16-4-1990 and was available in Chandigarh in the Collectorate for issue immediately after it was passed on 16-4-1990 as claimed by the then Collector, Sh. Gowri Shankar.

The deponent also respectfully draws attention to para 15 of his affidavit, filed on. 13-3-1991 in which a request had been made, that in order to verify what really happened to the file, the staff in the office of the Collectorate who would have been dealing with this file from the last date of hearing of the adjudication proceedings which was 19-2-1990 and on which date a further hearing had been requested in writing in the written submissions and the date of issue of the order to the parties, be kindly directed to be present before the Hon'ble Bench. This aspect assumes some importance particularly as the purported order stated to have been signed on 16-4-1990 does not appear to have been seen by anybody till 4-6-1990 and strangely the purported order contained references to information furnished on 25-4-1990 and which has been passed through by some hand which is also not initialled in authentication and indication for identifying the person who made this change. It is submitted therefore, that unless these glaring inconsistencies in the date of passing of the purported order are satisfactorily explained to the Hon'ble Bench, the only inference possible is that the purported order was not passed on the date shown on the order but must be some date subsequent to 25-4-1992 when Sh. Gowri Shankar was not the Collector in Chandigarh.

The deponent also submits that it is necessary that the records of the adjudication proceedings in respect of the purported order be produced again by the department on the next date of hearing of the above appeals." 7. The matter came up again on 27-5-1993 when orders were reserved. We have considered the submissions of both the sides and perused the records. It appears that only a draft order was signed by the Collector in the file and the purported order communicated to the appellants was not signed by him but only attested by another Central Excise officer.

An unsigned document purported to be an order has been issued to the appellants. There are certain additions and omissions, for example, the draft 'order' signed before relinquishing charge contains figures supplied by the appellants in response to the department's letter of 25-4-1990 which obviously could not have been available with the Deptt.

before that date. Certain sentences in the draft at page 27 thereof, are found in pages 97 and 98 of the copy of the order supplied. In the draft sub-paras (g), (h) and (i) have been struck off while in the copy furnished to the appellants sub-para (i) mentioning penalty amount of Rs. 50,000/- appears. Corrections also appear to have been carried out in different inks, without initialling. It further appears from the notes that there is no indication that the then Collector Sh. Gowri Shankar after having signed the draft on 16-4-1990, had issued any direction on the note-sheet of the file for issue of the order as passed by him. In addition to this, the notes in the file end abruptly on 15-3-1990. The next page is page 314 and the note is recorded on 4-6-1990. Pages 245/c to 314/c are missing, even though note sheet side pages are numbered consecutively as 16 and 17. No action seems to have been taken from 16-4-1990 to 4-6-1990 when the file was put up to the Supdt.

8. In the light of what we have set out above, we are satisfied that no final order in the eye of law was passed by Shri Gowri Shankar, the Collector at the relevant time and what was issued to and received by the appellants was not an order signed by him on 16-4-1990 as stated by him. Therefore, the impugned purported order suffers from lack of jurisdiction and requires to be set aside.

9. In the case of New India Dyeing and Finishing Mills -1992 (59) E.L.T. 418, adjudicated by the same Collector Sh. Gowri Shankar, similar issue as to validity of such 'order' had arisen for consideration and the Tribunal had set aside the impugned order and remanded the matter for de novo adjudication. We see no alternative but to adopt the same course of action herein without going into the merits of the matter. We set aside the purported order received by the appellants and remand the cases for de novo adjudication to the Collector of Central Excise, Chandigarh who shall pass fresh orders in accordance with law.

10. With due respects to Hon'ble Member (J) my views and orders in the matter are as follows : 11. I observe that at the face of it the file 'order' dated 16-4-1990 is apparently in the nature of a draft order. Therefore, even if it is presumed that it was passed on the date indicated (i.e. 16-4-1990) just a day before Shri Gowri Shankar relinquished charge of Chandigarh Collectorate, it could not be considered as a final (fair) order, that is, it was not (as yet) an adjudication order in the eyes of law.

12. But even if it is treated as the final order in view of the affidavit of Shri Gowri Shankar, it cannot be considered as a proper order as, inter alia, it contains a reference to post 17-4-1990 developments. Although scored, this reference shows that this order was not passed on the date indicated namely 16-4-1990, but subsequently when Shri Gowri Shankar was no longer Collector of Central Excise, Chandigarh. Hence it was not an order passed by the proper authority.

13. It is interesting to note in this connection that the Chief Departmental Representative found it difficult to explain the discrepancies which were admittedly of a serious nature, even after getting in touch with the officer(s) concerned and seeking instructions, nay even after Sh. Gowri Shankar had filed the affidavit.

13.1 It is also significant that she could not contradict the appellants' assertion to the effect that: (i) the file 'order' was different in material particulars from the so-called 'order' received by the appellants; (ii) that the affidavit filed by Shri Gowri Shankar did not correctly or fully explain the position; and (iii) that even Shri Gowri Shankar's affidavit contained incorrect aversions or discrepancies.

13.2 Indeed she very fairly conceded that the nature and type of discrepancies were such that they could only be personally explained by Sh. Gowri Shankar who may be summoned for the purpose and went on to admit that filing of an incorrect affidavit was a serious matter of which this Court ought to take judicial notice.

14. While we are refraining from making any observations regarding the conduct of Sh. Gowri Shankar at this stage as separate proceedings for contempt of Court have been initiated against him and have been stayed by the Hon'ble High Court of Delhi, we feel we are free to make appropriate observations regarding his actions and omissions as an adjudicating authority and the way this case has been dealt with by him and those officers in the Chandigarh Collectorate who have dealt with the file after the hearing was over and the proposed order was drafted.

And to say the least prima facie, there was something seriously wrong the way the Collector Shri Gowri Shankar and his officers have carried on and the matter apparently requires a probe by higher administrative authorities concerned. Hence the Board (CBEC) may like to look into this aspect of the matter.

15. In so far as the so-called 'order' served on the appellants is concerned, it is a document unsigned by the adjudicating Collector and differs in material particulars from the file 'order'. Therefore, this document is not an adjudication order passed by the proper officer in the eyes of law.

16. In other words, neither the file 'order' (draft 'order') nor the purported 'order' received by the appellants could be considered as an adjudication order passed by the proper officer.

17. Indeed the document filed by the appellants as the purported 'order' can only be considered as 'non est' in the eyes of law. Hence the successor Collector was at liberty to grant a fresh hearing and decide the cases. The cases are disposed of accordingly.

Sd/- 18. In view of the difference of opinion between Hon'ble Judicial Member and the Vice President, the matter is submitted to the Hon'ble President for reference to a third Member on the following point: "Whether the purported 'order' was non est in the eyes of law and a declaration to this effect by this Court was sufficient for the disposal of this case or the impugned 'order' was required to be set aside and the matter remanded to the Collector for de novo adjudication in accordance with law." Sd/- Sd/- (Jyoti Balasundaram) (S.K. Bhatnagar)Dated: 20-9-1993 Member (J) Vice President 19. Arguing on the point of difference Shri M.A. Rangaswamy, the learned Counsel supported the order proposed by the Hon'ble Vice President and contended that when an order is non est, it is not order in the eyes of law. He relied upon the case law reported in 1988 (36) E.L.T. 713 (Tribunal) in the case of Singh Radio and Electronics v.Collector of Customs. In this order there was only an order to set aside the impugned order and there was no direction for de novo proceedings. So also the case reported in 1988 (37) E.L.T. 272 (Tribunal) in the case of Bliss Impex Corporation, Cochin v. Collector of Customs, the impugned order was quashed and there was no direction for fresh proceedings. The learned Counsel relied upon the Supreme Court decision in the case of Surendra Singh and Ors. v. State of Uttar Pradesh, reported in AIR 1954 S.C. 194 and AIR 1974 Calcutta 309 in the case of jabbalpore Electric Supply Co. Ltd. v. The Madhya Pradesh Electricity Board and Ors. It was argued that there is no need for a Court to declare a void order to be a nullity, although, it will be more convenient for a Court to do so. Relying upon the case of A.R.Antulay v. R.S. Nayak and Anr., reported in AIR 1988 Supreme Court 1531, the learned Counsel argued that an order with jurisdiction is a nullity and once it is a nullity, it is the end of the proceedings. The Court has to only quash it. Sh. K.N. Gupta, the learned Senior Departmental Representative pointed out that at one stage in the proceedings, the appellants herein themselves had asked for a remand of the case to the Collector. The learned Senior Departmental Representative further pointed out that though there is infirmity in the Collector's order affecting its very validity as an order, yet the show cause notice in the proceedings before the Collector is not affected and still stands. In the order proposed by the Hon'ble Vice President also it has been observed that Collector may grant fresh hearing.

20. On a careful consideration of the submissions made by both the sides the point of difference in this case lies in a very narrow compass. In the decisions of the Tribunal, in such a situation, where the impugned order was not a proper order in the eye of law, the Tribunal had been inclined to not only quash the tainted order but also to remand the matter for de novo adjudication. This has been done in fact in the case of an order from the same Collectorate under similar circumstances in the case of New India Dyeing & Finishing Mills v.Collector of Central Excise, reported in 1992 (59) E.L.T. 418 (Tribunal) in which the Tribunal had followed the ratio of the Supreme Court decision in Surendra Singh and Ors. v. State of Uttar Pradesh (supra). Another factor to be noted in this case is that the validity of the show cause notice remains unaffected. Further, even the Hon'ble Vice President had observed in his proposed order that a successor Collector is at liberty to grant fresh hearing and decide these cases.

In the circumstances, it will be more appropriate to set aside the purported order received by the appellants and remand the cases for de novo adjudication to the Collector of Central Excise, Chandigarh for passing fresh orders in accordance with law as has been proposed in the order of the Hon'ble Member (J). The order proposed by the Hon'ble Member (J) is accordingly concurred with.

21. In view of the majority opinion the purported "orders" received by the appellants are set aside and the matters are remanded for de novo adjudication to the Collector of Central Excise, Chandigarh for passing fresh orders in accordance with the law.


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