B.B. Goel vs Union of India and Another

Badar Durrez Ahmed, J.—In these writ petitions, which raise common issues, the petitioner seeks the quashing of the order-in-original dated 18.12.2009 passed by the Commissioner of Central Excise (Adjudication) insofar as it operates against him. A prayer has also been made seeking a direction restraining the respondents from taking any coercive action against the petitioner pursuant to the impugned order-in-original dated 18.12.2009. Similar issues have been decided by us on 26.04.2010 in WP (C) 1677/2010, WP (C) 1112/2010 and WP (C) 2303/2010.

The sequence of events leading up to the filing of the writ petitions began with the issuance of show cause notices to several exporters as well as to the present petitioner, who is an officer of the Department. Certain other officials of the Central Excise and Customs Departments, other than those involved in WP (C) 1677/2010, WP (C) 1112/2010 and WP (C) 2303/2010, were also issued show cause notices and they have also filed writ petitions but their case is somewhat different and, therefore, we are only dealing with the present official, namely, Mr B.B. Goel. The petitioner has filed WP (C) No. 1680/2010 and WP (C) No. 1684/2010. The petitioner was alleged to be involved in the activities concerning two exporters, namely, Buildex Metals and National Steel Products Company Limited.

The said show cause notices were adjudicated by the Commissioner of Central Excise (Adjudication) by the order-in-original passed on 30.10.2006.

Thereafter, the exporters, namely, Buildex Metals and National Steel Products Company Limited as well as several other exporters filed appeals before the Central Excise and Service Tax Appellate Tribunal in respect of the said order-in-original. The revenue, however, did not file any appeal in respect of the order-in-original pertaining to Buildex Metals and National Steel Products Company Limited. There were allegations against the petitioner, namely, B.B. Goel in the show cause notice issued to him. However, in the order-in-original referred to above, the petitioner has been exonerated and no penalty was levied on him. Thus, the position is clear that insofar as the petitioner - Mr B.B. Goel - is concerned, no appeal was filed by the revenue in respect of him nor was any appeal filed by the revenue in respect of Buildex Metals or National Steel Products Company Limited in connection with which, notice had been issued to the petitioner. However, Buildex Metals and National Steel Products Company Limited had preferred appeals against the order-in-original dated 30.10.2006 before the Tribunal. The present petitioner was, however, not made a party to those appeals inasmuch as Buildex Metals and National Steel Products Company Limited were not at all concerned with the order of exoneration of the present petitioner, namely, Mr B.B. Goel. This is an admitted position.

However, in the appeals filed by the exporters including Buildex Metals and National Steel Products Company Limited as well as some other appeals filed by the revenue, the Tribunal, after hearing the parties thereto, set aside the order-in-original dated 30.10.2006 and remanded the matters for de novo consideration by the Commissioner of Central Excise (Adjudication). Subsequent thereto, the Commissioner of Central Excise (Adjudication) passed fresh orders-in-original on 18.12.2009 and 29.12.2009. This time, however, a penalty of Rs 1.5 lacs was imposed on Mr B.B. Goel, in two of the cases.

The grievance of the petitioner is that there was no matter pending before the Tribunal pertaining to the present petitioner when the order of remand was made. Therefore, there was no question of his case being re-considered by the Commissioner of Central Excise (Adjudication), when he conducted his de novo adjudication. Consequently, no penalty could have been imposed on the petitioner. The learned counsel for the petitioner also submits that the department had accepted the finding of the Commissioner of Central Excise in the first round whereby the petitioner had been exonerated. The department had consciously decided not to prefer any appeal and, therefore, no appeals were filed against the order-in-original dated 30.10.2006, insofar as the present petitioner is concerned.

We have heard the counsel for the parties and are of the view that the submissions made by the petitioner ought to be accepted. The reason for this is very simple. The petitioner was not a party before the Tribunal when the order of remand was passed by the Tribunal. He was neither made a party by the exporters nor by the revenue and there was no question of the petitioner having filed any appeal because he had already been exonerated by the Commissioner of Central Excise (Adjudication). Therefore, the order passed by the Tribunal, whereby the matter was remanded for de novo consideration, could not, in any event, affect the petitioner in any way. The petitioner had specifically brought to the notice of the Commissioner of Central Excise (Adjudication) in the course of the de novo proceedings that no proceedings could be taken up against the petitioner in view of the fact that he was not a party before the Tribunal and that, in any event, the earlier order-in-original, insofar as the petitioner was concerned, had already been accepted by the department. Despite this, the Commissioner of Central Excise (Adjudication), in the second round of adjudication, imposed a penalty on the petitioner. We are of the view that this could not have been done in the facts and circumstances of the case. The remand by the Tribunal did not relate to the petitioner as he was not a party before the Tribunal.

As a consequence, the impugned order-in-original dated 18.12.2009 is set aside to the extent it relates to the petitioner in respect of the subject matter of the present petitions. The writ petitions are allowed to this extent. The parties shall bear their own respective costs.

The writ petitions stand disposed of.