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Matter heard by Member (J), decision delivered by Member (T) - Order set aside and matter remanded with direction to hear and decide issue only by one person, either by Member(T) or Member(J): HC

By TIOL News Service

AHMEDABAD, AUG 10, 2015: A show cause notice was issued to the petitioner consequent to road patrolling by the departmental officers who suspected the invoice issued by the petitioner. Subsequent to production of documentary evidence, the Additional Commissioner dropped the proceedings, which was challenged before the Commissioner of Central Excise (Appeals) who confirmed the order passed by the authority. Revenue filed an appeal before the Tribunal.

The matter was listed for hearing on 06.09.2013 and the same was adjourned on 20.09.2013. On 20.09.2013, the same Member (Judicial) of the Tribunal heard both the sides and the matter was reserved for orders. The Petitioner subsequently received an order passed by Member (T) dismissing the appeal. The Petitioner challenge the same.

The Petitioner submitted that the matter was heard by the Member (Judicial) of the Tribunal and the order was reserved. The Member (Judicial) of the Tribunal, instead of pronouncement of the order, had put an endorsement on the order sheet that the matter be re-listed on the board for certain clarifications. Instead of re-listing the mater on board of the Member (Judicial) of the Tribunal, the same was listed before the Member (Technical) of the Tribunal, who had ultimately decided the matter in absence of the petitioner or his advocate.

After hearing both sides, the High Court held:

When the appeal was already heard and reserved for orders and the Member (Judicial) of the Tribunal had directed the registry for re-listing the matter for the certain clarification, the registry ought to have re-listed the matter before the Member (Judicial) of the Tribunal and not before the Member (Technical) of the Tribunal. The Member (Technical) of the Tribunal ought not to have proceeded with the matter in absence of the petitioner and ought not to have decided the same, which is contrary to the decisions of the Apex Court. The Member (Judicial) of the Tribunal was the best person to decide the matter only after getting some clarification, which he intended to get from the either party as he had put remarks on 25.10.2013.

The order impugned in the petition is required to be quashed and set aside. The matter is required to be remanded to the Tribunal for a fresh hearing and accordingly is remanded. It is clarified that the matter shall be heard and decided only by one person either by the Member (Judicial) of the Tribunal or by Member (Technical) of the Tribunal in accordance with law.

(See 2015-TIOL-1797-HC-AHM-CX)


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