By TIOL News Service

NEW DELHI, MAY 28, 2018: AGAINST the order passed by the CESTAT, the appellants are before the Delhi High Court.

After hearing the submissions made, the High Court, at the outset, observed that it was not required to go into details and merits of factual disputes as an order to remit would be required for fresh adjudication by the Tribunal.

Inasmuch as the High Court noted that the impugned order did not specifically and elaborately deal with the diverse and different contentions on facts and law but rejected the arguments and contentions made by the appellant by reproducing the findings recorded in the order-in-original and thereafter by observing that the said findings are correct.

The High Court, thereafter, proceeded to sermonise the CESTAT thus –

++ The Tribunal is the final fact finding authority under the Act i.e. the Central Excise Act, 1944. As a final fact finding authority and the first appellate authority against the order-in-original in the present case, the Tribunal was required to examine the statements, documentary evidence, consider the effect of retraction with reference to the legal position and thereupon arrive at definitive and considered decision.

++ No doubt, as the final fact finding authority, the Tribunal can rely upon the reasoning, findings or inferences given in the order-in-original, there has to be also fresh and independent application of mind and not a mere reproduction and repetition even if the final conclusion is one of affirmation.

++ In the present case, the impugned order on all aspects and contentions merely reproduces the order-in-original, without specifically and independently examining and dealing with diverse contentions. Reference and independent and exhaustive elucidation of the factual contentions raised by the appellants and consideration of legal issues based upon the said contentions is conspicuously lacking and missing. The impugned order suffers on this account.

Citing the apex court decision in Kranti Associates Pvt. Ltd and Others. Vs. Masood Ahmed Khan and Others - 2010-TIOL-145-SC-MISC, the High Courtobserved that, in its view, the impugned order did not meet the mandate and legal requirements set out therein. Reliance is also placed on the decisions in Rakesh Arora Vs. Commissioner of Customs - 2011-TIOL-922-HC-DEL-CUS and Nitesh Kumar Kedia Vs. Commissioner of Customs, Import & General, - 2012-TIOL-331-HC-DEL-CUS .

The matter was remanded to the Tribunal for a fresh decision.

(See 2018-TIOL-987-HC-DEL-CX)