Commissioner of C. Ex. and Cus. vs Met India Ltd.

Rajesh H. Shukla, J.—In this group of appeals, despite notice for final disposal having been served, in some of the matters no one appears, whereas in Tax Appeal Nos. 196/2010,180/2009,183/2009,184/2009 & 200/2010 learned advocate Mr. Dhaval Shah appears and states that he has received only telephonic instructions and he has not received the papers for which time may be granted. Though, normally, the request could have been acceded to, it appears from the order passed earlier that fresh notice were ordered to be issued and after they are served, if the learned advocate has stated that he has not received the papers, further indulgence cannot be granted.

The issue involved in these appeals is very short and, therefore, while issuing the notice it was issued for final disposal of these appeals.

Mr. R.M. Chhaya, learned Sr. Standing Counsel, appearing for the Revenue in some of the appeals and Ms. Amee Yajnik, learned Sr. Standing Counsel, appearing for the Revenue in some of the appeals have submitted that the Tribunal has passed the order in a laconic and cavalier fashion and, therefore, the same is required to be remanded back to it. The learned Counsel have emphasised that, while remanding the matter back to the adjudicating authority, the Tribunal has in fact affected the valuable right of appeal of the Appellant-department. The learned Counsel have referred to the order passed by the Tribunal and emphasised that there were group of appeals which can be seen from the title of the order of the Tribunal and only in three appeals applications for stay were filed by 3 parties and while deciding such interim applications of three Appellants, the Tribunal has decided the entire group of appeals and remanded the matters back without affording any opportunity of hearing to the Appellant-department in all other cases. In fact, there is no reference even as to whether such interim applications were there in other matters or not. Both the learned Counsel have therefore pointedly referred to this aspect and emphasised that it is a slipshod manner of disposing of the appeals and while deciding the interim applications, the appeals could not have been decided. The learned Counsel have stated that the right of appeal is a substantive right which cannot be denied in such a fashion without affording even an opportunity of hearing in each matter.

Learned Counsel Mr. Chhaya has emphasised that the Tribunal being the final fact-finding authority was required to consider each appeal and the facts relevant to each appeal and therefore, while deciding the interim applications in three matters, it could not have disposed of all the appeals in such a slipshod manner and therefore they have strenuously submitted that the matters are required to be remanded for being decided by the Tribunal in light of the basic principles of law that right of appeal or a statutory right of appeal is a substantive right and the authority or the Tribunal authorised to hear and decide such appeal must decide it after considering the merits and the pros and cons of the matter and after affording an opportunity of hearing to both the sides. Therefore, it has been submitted that the matters may be remanded back to the Tribunal for a decision in respect of the aforesaid appeals.

Having heard the learned Counsel, it is required to be considered whether the matters are required to be remanded as prayed for.

As it transpires from the papers, detailed show-cause notices have been issued and the orders have been passed by the appellate authority and admittedly the order is passed by the Tribunal while deciding the interim applications of three parries and the entire group of appeals are remanded back to the adjudicating authority without affording any opportunity in respect of other appeals to the department. The reference made to the three interim applications may not be applicable on facts qua other appeals and therefore the appeal as provided under the statute could not have been decided in such cavalier fashion. It is well settled that the right of appeal is a substantive right which is vested in the party aggrieved. The right to file an appeal gets crystallized only when it is decided by the appellate authority or the court/tribunal and no clog can be put on such a right. The right of appeal being a substantive right carries with it all the rights and therefore once such a right is provided by the statute, it cannot be denied or taken way in such a manner inasmuch as the right has been negated qua the other appeals.

As the appeals have been decided without having heard on merits while deciding the interim applications in 3 matters, the order passed by the Tribunal deserves to be quashed and set aside.

It is required to be mentioned that though the issue may be similar or identical, again it will have to be considered on the basis of the facts and it is obligatory on the part of the Tribunal established under the Act to consider the issue involved, the pros and cons and after considering the submissions on the basis of material and evidence the appeal could be decided. If the issues involved are identical or similar, even then it was required to be considered based on the material while deciding the appeal and the appeal ought to have been decided after considering the submissions and after providing an opportunity of hearing to both the sides. Therefore, it is necessary and imperative that it must appreciate the basic facts involved and the controversy or the issue and submissions canvassed by both the sides and thereafter it could have decided, including even the decision to remand it back to the adjudicating authority.

It is well-settled by catena of judicial pronouncements that reasons are required to be recorded reflecting about the decision making process. The Hon''ble Apex Court in a judgment reported in the case of Ran Singh and Another Vs. State of Haryana and Another, observed,

Even in respect of administrative orders, Lord Denning, M.R. in Breen v. Amalgamated Engg. Union (1972) 2 QB 175 observed: (All ER p. 1154h) The giving of reasons is one of the fundamentals of good administration.'' In Alexander Machinery (Daudley) Ltd. v. Crabtree 1974 ICR 120 it was observed: ''Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.'' Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ''inscrutable face of the sphinx'', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The ''inscrutable face of a sphinx'' is ordinarily incongruous with a judicial or quasi-judicial performance.

In the facts of the present case, while remanding the matter back, there is not a whisper as to the issue involved and in any case while deciding the interim applications in three matters, all the other appeals itself could not have been disposed of in such manner. The consideration while deciding the interim applications would be different than deciding the appeal itself whether it is filed by the department or the Assessee. We are, therefore, at pains to note the approach of the Tribunal and the course adopted by the Tribunal as it has disposed of the appeals while deciding the interim applications in 3 matters in such manner without having discussed with regard to the issue involved or the merits of the case on appreciation of material or providing an opportunity of being heard.

However, since that has not been done, we are of the view that the contentions raised by the learned Counsel for the Appellant-department are well founded and the present group of appeals deserves to be remanded back to the Tribunal with direction that the Tribunal will decide about the merits or the issue involved in the matter after providing an opportunity of hearing to both the sides.

Accordingly, the present appeals hereby stand allowed. The impugned order passed by the Tribunal dated 25-6-2008/1-8-2008 is hereby quashed and set aside and the matters are remanded back to the Tribunal for fresh decision on merits after hearing both the sides.