The order passed in contravention of the stay order of High Court of Rajasthan is not sustainable.

PJ/Case Laws/2012-13/1198

Case:- GOLDEN TABACCO LTD. VERSUS COMMR. OF C.EX, (ADJ), NEW DELHI
Citation: - 2012 (282) E.L.T. 385(Tri-Delhi)
Issue: - The order passed in contravention of the stay order of High Court of Rajasthan is not sustainable.
Brief fact: -The appeals are preferred against the order-in-original confirming duty demand of Rs. 30,85,63,593/- with interest against the appellant M/s. Golden Tobacco Ltd. and M/s. Chinar Cigarettes Pvt. Ltd. besides imposing penalty on various persons including the appellant. These matters were originally listed for argument on stay applications moved by the appellants seeking waiver of the condition of pre-deposit of the duty demand and penalty. During the course of arguments, Advocate for the appellant submitted that the order has been passed in contravention of the stay order dated 1-11-2001 passed by the High Court of Rajasthan, as such is not sustainable in law. Since the arguments advanced by the Id. Counsel for the appellant is purely legal with the consent of the parties the tribunal have proceeded to hear the appeals itself after waiving the condition of pre-deposit of demand, interest and penalty. During adjudication proceedings the appellant requested for supply of copies of all the relied upon documents in terms of the law laid down by the Supreme Court. Commissioner (Adjudication) however failed to supply the complete set of relied upon documents. Accordingly, a writ petition seeking direction to the Department to supply copies of relied upon documents to the appellant was filed.
Appellant ContentionThe Appellant submitted that despite the stay order the Commissioner (Adjudication) instead of supplying the documents demanded by the appellant proceeded to pass adjudication order and signed the same on 7th November without mentioning the year.
Ld. Counsel submits that this order being in contravention of the stay order passed by the High Court cannot be sustained and is liable to be set aside. It has further submitted by Appellant that the High Court of Rajasthan ultimately allowed the writ petition vide order dated 30-1-2006 directing the department to supply copies of all the relied upon documents. It is further submitted that from the above it is apparent that the Commissioner (Adjudication) has violated the stay order passed by the impugned order without supplying copies of relied upon documents to the appellant and this itself amounts to violation of principle of natural justice because non supply of documents have prevented the appellant to properly defend the show cause notice. Thus, Id. Counsel has urged that the appeal be accepted and matter be remanded back for de novo adjudication after complying with the direction of the High Court and also permitting the appellant to cross-examine the relevant witnesses on whose statement the department wants to rely upon.
Respondent Contention:- The Id. AR on the contrary has argued in support of the impugned order and he has referred to the affidavit of Commissioner (Adjudication), Delhi and submitted that adjudication order was passed by the then Commissioner (Adjudication) on 30-10-2001 when he approved the fair copy of the order in the administrative file. It is submitted that the order came into operation on 30-10-2001 and signing of the order by the Commissioner (Adjudication) on 7-11-2001 was only a formality. Thus Id. AR submitted that the impugned order was passed much before the said order. It is also contended that the final order of the High Court dated 30-1- 2006 has not given direction to the department to supply the copies of relied upon documents and it has no bearing on the validity of the impugned order because it was passed much before the final order. More so, because of the fact that the High Court while deciding the writ petition did not set aside the impugned order. The Id. AR has thus, pressed for the dismissal of all the appeals.
Reasoning of Judgment: In order to be executable order, it necessarily has to be signed by the authority concerned. Admittedly impugned order was signed on 7-11-2001 during the operation of stay order. Therefore, it came into existence on 7-11-2001 in violation of the stay orders, which was within the knowledge of the Commissioner (Adjudication), therefore, Tribunal do not find any merit in the contention of the Id. AR for the department.
It is evident that the impugned order has been passed by the Commissioner (Adjudication) in violation of the undertaking given to the Rajasthan High Court on 7-11-2001 by Advocate for the department. Since the order has been passed in violation of the undertaking, Tribunal find it difficult to sustain the same otherwise also in view of the final order of the High Court on the writ petition of the appellant directing the department to supply copies of the relied upon documents, it is apparent that the appellant was not supplied with relevant relied upon documents by the adjudicating authority. This obviously has resulted in failure of justice because non supply of documents has prevented the appellant from defending the show cause notice properly. On this count also, the order-in-appeal cannot be sustained. Thus, Tribunal accept the appeals and remand the matters back to the Commissioner (Adjudication) for de novo adjudication and decide afresh with the direction that the Commissioner (Adjudication) shall supply the copies of documents to the appellant in terms of the direction of the Rajasthan High Court given in the writ petition vide order dated 30-1-2006. The Commissioner (Adjudication) shall also afford an opportunity of hearing to the appellant to cross-examine the relevant witnesses subject to their availability.
Decision: -Appeal disposed off
Comment:- This is very good decision wherein the Commissioner has passed the order without considering the direction of Court. The contention of the Commissioner was that he has passed the order before the final order by Court. The only thing was that he has singed the order after the order of High Court. When he was knowing the order of High Court on the date of singing of order. Then he should have complied with directions of High Court. This is the way of functioning of departmental officers.

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PJ/Case Laws/2012-13/1198

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