Stanlek Engineering Pvt. Ltd. vs Commissioner of C. Ex.

P.C. Heard.

The facts relevant for disposal of this appeal are that the Appellant had filed appeal before the Customs Excise and Service Tax Appellate Tribunal, Mumbai.("the Tribunal" for short). While that appeal was pending, on 28th May, 2005, the Appellant filed written submissions. In the written submissions it was claimed that the Appeal of the Appellant is covered by two decisions of the Tribunal. The appeal was heard on 9-8-2006. Nobody had appeared on behalf of the Appellant. The Tribunal by referring to a judgment of the Supreme Court in the case of Commissioner of C. Ex., Ahmedabad Vs. Ramesh Food Products, disposed of the Appeal. No reference was made to the judgments of the Tribunal which were relied upon by the Appellant. The Appellant, therefore, filed an application for rectification pointing out that he had relied upon the two judgments of the Tribunal in his submissions. The Tribunal, however, disposed of his Appeal without considering those judgments. His application was disposed of by an order dated 3-1-2007. Again, without referring to the two judgments of the Tribunal on which the Appellant was relying. In our opinion, the procedure that has been followed by the Tribunal is not in accordance with law. If the written submissions of the Appellant dated 28-9-2005 were before the Tribunal, it was for the Tribunal to consider the case of the Appellant as submitted by him in his written submissions. After considering that case the Tribunal was free to rely upon the judgments of the Supreme Court. If in the opinion of the Tribunal, the two judgments of the Tribunal on which the Appellant was relying, were not relevant. The Tribunal could have said so in its judgment. In our opinion, the course adopted by the Tribunal, of even not referring to the judgments of the Tribunal of which the Appellant was relying, is not proper. In our opinion, it was for the Tribunal to point out, after considering the judgment of the Tribunal on which the Appellant was relying, how those judgments were not relied and how, according to the Tribunal, the matter is covered by the judgment of the Supreme Court.

Taking over all view of the matter, in our opinion, the following order would meet the ends of justice. The order dated 9-8-2006 passed in Appeal No. E/1518/01 is set aside and that the appeal is remanded back to the Tribunal for de novo consideration and decision in accordance with the law.