By TIOL News Service

AHMEDABAD, NOV 20, 2014: THE issue involved is whether summons issued to the appellant can be treated as an appealable decision or order passed by the adjudicating authority as per provisions of Section 35 of the CEA, 1944, and whether the summons issued by Superintendent (Prev.) while carrying out an investigation is legal or not.

When the matter was listed for hearing on two earlier occasions, the appellant asked for adjournments. The Tribunal observed that this attitude of the appellant indicated that they were no more interested in pursuing the appeal.

The AR submitted that in exercise of powers given to the Central Excise officer u/s 14 of the CEA, 1944 (and made applicable to Service Tax in terms of s.83 of FA, 1994) summons were issued to the appellant for obtaining certain information in the course of conducting an investigation; that the summons issued to the appellant was not an appealable order and was only a notice for giving certain information.

The Bench observed -

++ It is observed from the case records that appellant has not appeared for personal hearings on the previous occasions when the case fixed and today also appellant has sought for adjournment. It shows that appellant is not serious in pursuing his case, therefore, adjournment request is rejected as well as the appeal is also liable to be rejected for non-prosecution.

++ On merits also it is observed that powers to issue summons by an investigating authority are provided u/s 14 and cannot be considered in the nature of a decision or order as mentioned u/s 35 of the Central Excise Act, 1944 as made applicable to the provisions of Finance Act, 1994.

++ The findings recorded by the first appellate authority clearly discuss the provisions of Section 14 and Section 35 of the Central Excise Act, 1944, while arriving at the point that summons issued to the appellant are neither appealable decisions nor orders passed under Central Excise Act, 1944.

++ The purpose of issue of summon during an investigation is to gather information from the appellant. The ground taken by the appellant that conducting enquiry by the Revenue is unjust, illegal and arbitrary is without any basis and is required to be dismissed as the powers of investigation given to the Revenue cannot be curtailed on such flimsy reasons taken by the appellant.

In fine, the appeal was rejected on merits as well for non-prosecution.

Also see – 2014-TIOL-92-SC-CX-LB.

(See 2014-TIOL-2318-CESTAT-AHM)