Commissioner of Customs (II) vs Nitin Aminchand Shah

This is one more instance where this time the Revenue has approached this Court in extraordinary jurisdiction under Article 226 of the Constitution of India praying that the orders at "Annexure C" and "Annexure E" be set aside and the Appeal No. C/301/09-Mum should be re-heard and in accordance with law by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (CESTAT). This Writ Petition narrates the circumstances in which the Revenue has made this somewhat unusual request. The show cause notices and which have been issued to the parties whose names are enlisted at page 8 of the paper book were adjudicated and the order-in-original dated 11-3-2005 was passed by the Commissioner of Customs, CSI, Airport, Mumbai confirming the re-determined value, confiscating the rough diamonds absolutely and imposing penalties.

Being aggrieved by the order passed on 11-3-2005, the assessees/Importers filed appeals before the CESTAT. The CESTAT while deciding the stay applications took the appeals themselves and heard them finally. The case was remanded back to the adjudicating authority on the ground that the minutes of valuation were not signed by all the members of the expert panel of the Gem and Jewellery Expert Promotion Council and the importers were not allowed to cross-examine the members of the expert panel before the case was decided. This initial order passed by the CESTAT is dated 16-6-2005.

In pursuance of this order, the adjudication was carried out de novo. After de novo adjudication, an order was passed on 30-12-2008 and which came to be challenged once again by the importers before the CESTAT.

In the initial order passed on 6-8-2013 by the CESTAT, there was difference of opinion between the Member (Judicial) and the Member (Technical). The Member (Judicial) was of the opinion that for the reasons indicated by him the appeals of the Importers deserve to be allowed. Whereas the Member (Technical) passed a separate order upholding the Department''s stand, but yet remanded the case to the Commissioner for ascertaining the value of the impugned goods by constituting a Panel in accordance with the departmental instructions. Thereafter, the parties were to be given a fresh opportunity of hearing.

On account of this difference of opinion, the matter was referred by the President, CESTAT to a Third Member. In the meanwhile, the importers filed rectification of mistake applications pointing out the alleged mistake in the initial order of the Tribunal dated 6-8-2013.

As was expected, even when these applications for rectification were placed before the same Bench, the Members thereof differed. The applications were admitted by the Member (Judicial) whereas the Member (Technical) recorded a separate order. That separate order of the Member (Technical) did not conclude the applications for rectification of mistake. Be that as it may, these rectification applications were pending together with the issue raised thereunder for more than one year.

Thereafter, the rectification applications were finally decided on 8-12-2014 but recording a dissent and difference of opinion between two Members.

Then, this difference of opinion was also marked and referred to same Third Member who was to resolve the disagreement in the initial order dated 6-8-2013.

We are informed that the Third Member was inclined to hear the matter sometime in March, 2015, but a letter was filed by one of the applicants stating that he has approached the Hon''ble Supreme Court of India praying that all three orders namely orders dated 6-8-2013, 29-9-2014 and 8-12-2014 be set aside and the appeal itself be heard afresh. This letter was taken on record and hearing of the matters was adjourned to 30-4-2015.

On retirement of the Member (Technical) in the first week of April, 2015, the Civil Appeal in the Hon''ble Supreme Court came to be withdrawn and now the matter is assigned to the Member (Judicial) as a Third Member.

We are not required to go into any larger controversy or debatable issues simply because the request that has been made by the assessees at one stage and opposed by the Revenue is now being acceded to. Meaning thereby, both sides request that to resolve this confusion and chaos, the appeals be reheard. Now that there is a fresh set of Members, the matter can be heard de novo and disposed of in accordance with law.

Reliance is placed upon the order passed by this Court and reported in " Sarto Electro Equipments Pvt. Ltd. and Others Vs. The Union of India and Others(2015) 318 ELT 55 ".

Both sides relied upon this order and though it was passed in unusual factual circumstances, it is submitted that the course adopted by this Court is the only solution. That would expeditiously dispose of the pending cases and appeals which arose out of the orders-in-original initially made in the year 2005 and later on in the year 2008.

After hearing both sides and finding that this is one more instance where the Members of Bench have differed and recorded dissenting opinion, thereafter the matter was not pursued and decided in right earnest, that by consent of both sides, we set aside the initial order dated 6-8-2013 passed in the set of nine appeals and which is a common order. We restore each of these appeals to the file of the CESTAT for being decided afresh in accordance with law and after giving an opportunity of being heard in person to all the parties thereto. The Tribunal shall endeavour to dispose of the appeals expeditiously bearing in mind that they are pending for long time. In the light of the consent recorded for setting aside the initial CESTAT order dated 6th August, 2013, all rectification applications and reference to a Third Member will not survive and they are disposed off.

Further, the Tribunal should bear in mind the caution administered by this Court in the above decision and all such decisions rendered prior thereto. We do not see why there should be a difference of opinion on factual matters. Further, if there is a broad agreement between the Members on what course should be adopted and as a final one, then, by some meaningful discussion, continuous dialogue and by not demonstrating unnecessary haste, disagreements and dissents can be avoided. We hope and trust that hereafter, we will not be required to pass similar orders. Instead of taking up the matters on merits, our time will not be wasted in ensuring that the Tribunal resolves the cases in accordance with law. The Writ Petition is disposed off in the above terms. No order as to costs.