ImprovingAdjudication - Mysore Central Excise, Customs and

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IMPROVING ADJUDICATION

1

ST

FEBRUARY, 2013

BY

SHRI A.K.PRASAD

CHIEF COMMISSIONER OF CENTRAL EXCISE,

MYSORE ZONE

•THE SCN SHOULD CLEARLY STATE THE SPECIFIC SECTION/

CLAUSE/SUB CLAUSE UNDER WHICH DEMAND IS MADE.

•THE SCN SHOULD CLEARLY STATE THE SPECIFIC SECTION/

CLAUSE/SUB CLAUSE UNDER WHICH PENALTY IS SOUGHT TO BE

IMPOSED [ SECTION 11AC, OR RULE 26 OR 27 OF CE RULES, 2002 –

[AMRIT FOODS VS CCE, UP – 2005(190)ELT433(SC)]

].

• HOWEVER IF THE INGREDIENTS OF THE SUB-SECTION OF SUB-

RULE HAVE BEEN BROUGHT OUT IN THE SCN, THE DEMAND OR

THE SCN IS NOT VITIATED

[

RAGHUNATH INTERNATIONAL VS CESTAT-2011 (266) ELT 432

(ALL), ROCHE PRODUCTS LTD VS CC1989(44)ELT194(SC),

K.K.STEEL VS UOI – 1978(2)ELTJ355(SC)

].

• REASONS FOR INVOKING EXTENDED CLAUSE OF SECTION 11A

SHOULD BE CLEARLY BROUGHT OUT IN THE SCN.

• FOR IMPOSING PENALTY ON ANY DIRECTOR OR EMPLOYEE

THEIR ROLE SHOULD BE CLEARLY BROUGHT OUT.

• RETURN

ALL NON-RELIED UPON DOCUMENTS/ COPIES

THEREOF , DULY ACKNOWLEDGED IN DETAIL.[RULE 24A OF

THE CENTRAL EXCISE RULES, 2002]. THESE DOCUMENTS

ENABLE THE ASSESSEE TO MAKE THEIR DEFENCE

• ALL DOCUMENTS/ REPORTS/ RECORDS OF INVESTIGATION

ETC., WHETHER OR NOT RELIED UPON IN THE BODY OF THE

NOTICE , BUT, UPON WHICH THE ORDER MAY BE BASED, MUST

BE GIVEN TO THE NOTICEES ALONG WITH THE NOTICE.

• SCN CAN BE ISSUED WITHOUT QUANTIFICATION TO SAVE

TIME BAR AND QUANTIFICATION INTIMATED TO PARTY

BEFORE ADJUDICATION

[BIHARI SILK & RAYON PROCESSING MILLS (P) LTD VS CCE

BARODA -2000(121)ELT617(TRI-LB)]

YOU CANNOT COLLECT ANY MORE EVIDENCE AFTER ISSUE OF

SCN

IF YOU DO, YOU CANNOT RELY ON IT WITHOUT PUTTING THE

ASSESSEE TO NOTICE ABOUT IT AND GIVING HIM ADEQUATE TIME

TO REPLY TO IT AND HEARING HIM.

GIRNAR SPINNING LTD. VS. CCE 1998 (104) ELT 720(T)

WIMCO VS. UOI 1980 (6) ELT 235 (BOM)

MSEB VS. CCE 2006 (205) ELT 238 (T)

_ SURESH SYNTHETICS- 2007(216) ELT 662(SC)

IF DGRI/ DGCEI ISSUE NOTICES, YET, SUPPLY OF RELIED

UPON DOCUMENTS AND RETURN OF NON RELIED UPON

DOCUMENTS MUST BE ENSURED BY THE ADJUDICATING

AUTHORITY AND REPORT OF SERVICE GOT FROM

INVESTIGATING AGENCY.

ADJUDICATION SHOULD NOT BE UNDERTAKEN UNTIL THE

ABOVE IS DONE AND THE NOTICEES ARE GIVEN ADEQUATE

TIME TO REPLY AND ARE EFFECTIVELY HEARD.

P. KRISHNA MOHAN VS CC 2007 (220) ELT 223 (T)

• IN CASE PARTY ASKS FOR DOCUMENTS YOU MUST REPLY TO

THEIR LETTERS,BECAUSE THEIR LETTERS ARE PART OF THE

RECORD,AND IF WE HAVE SUPPLIED THE DOCUMENTS,WE

MUST REPLY AND ENCLOSE EVIDENCE OF THEIR RECEIPT.

KUBER INTERNATIONAL VS. CCE 2005 (190) ELT 447 (T)

SCN/ HEARING NOTICE SHOULD BE SERVED IN THE MANNER

PRESCRIBED IN THE ACT.

YOU MUST SEND IT BY REGISTERED POST/SPEED POST WITH

ACKNOWLEDGEMENT DUE/PRESERVE ACKNOWLEDGEMENT.

AND ONLY IF YOU PRODUCE THE ACKNOWLEDGEMENT IS THE

NOTICE CONSIDERED SERVED.

IF FACTORY IS CLOSED, YET, FIRST EXHAUST THE ABOVE

MODE BEFORE AFFIXING ON THE FACTORY PREMISES/

AFFIXING ON NOTICE BOARD.

GLOBAL SYNTEX VS. CCE 2004(169) ELT 307 (T)

ALLOW CROSS EXAMINATION OF TECHNICAL EXPERTS WHOSE

OPINION IS RELIED UPON

[ ROYAL IMPEX VS CC 2008 (221) ELT 114(T)]

ALLOW CROSS EXAMINATION OF AUTHORS OF DOCUMENTS/

REGISTERS WHICH ARE RELIED UPON

[

NEW TOBACCO LTD. VS CCE 2007 (208) ELT 257(T)]

•IN CERTAIN SITUATIONS THE CROSS EXAMINATION COULD BE

REFUSED.

[

2000 (120) ELT 556 (T), LIYAKAT SHAH VS CCE, INDORE-II.

2002 (142) ELT 640(T), SUMAN SILK VS CCE, BARODA.

2007(220) ELT 842(T), SURESH JHUNJHUNWALA VS CC,

HYDERABAD].

• RIGHT TO CROSS-EXAMINATION IS NOT AN ABSOLUTE RIGHT

[SHYAM LAL BIRI MERCHANT VS UOI - 1993(68)ELT548(ALL)]

RECORD ALL REQUESTS FOR ADJOURNMENTS IN THE

ORDER

AND DEAL WITH EACH ONE OF THEM

G D PHARMACEUTICALS VS CCE 1999(105) ELT 253 (T)

EX PARTE ORDERS MUST BE PASSED ONLY AFTER ALL

EFFORTS TO FOLLOW NATURAL JUSTICE ARE EXHAUSTED.

ADJUDICATOR MUST NOT GIVE MULTIPLE DATES OF

HEARING IN ONE INTIMATION. ASSESSEE TOO HAS A RIGHT

TO SELECT A DATE AS PER HIS CONVENIENCE

AFLOAT TEXTILES VS CCE 2007 (215) ELT 198(T)

ALL LETTERS RECEIVED AND ADDITIONAL SUBMISSIONS

MADE BY ASSESSEE AFTER THE HEARING AND UPTIL DATE OF

SIGNING OF ORDER SHOULD BE CONSIDERED IN THE ORDER

OSIO ELECTRONICS VS CCE 2000 (124) 778 (T)

CHANGE OF

REHEARING

ADJUDICATING AUTHORITY REQUIRES

BINAYKIA SYNTHETICS VS CC 2008 (224) ELT 294 (T)

A

IF CORRIGENDUM/ ADDENDUM IS ISSUED TO THE NOTICEE

AFTER THE HEARING, RE-HEAR THE MATTER

RAYMOND LTD. VS CCE 2008 (224) ELT 413 (T)

PENALTY

COMBINED PENALTY UNDER DIFFERENT SECTIONS NOT TO

BE IMPOSED.

RECENT DECISION OF THE SUPREME COURT IN THE CASE OF

DHARMENDRA TEXTILES (2008 (231) ELT 3 (SC)).

WHAT IS THE EFFECT OF DEPOSITING THE DUTY BEFORE

ISSUE OF THE SCN.

(CCE & C, AURANGABAD VERSUS

PADMASHRI V.V. PATIL S.S.K. LTD. 2007 (215) E.L.T. 23

(BOM.)

HOLDING GOODS LIABLE FOR CONFISCATION IS DIFFERENT

FROM ACTUALLY CONFISCATING THE GOODS

[ REF RULES

25 & 26 OF CE RULES 2002]

10

QUESTION OF FACT AND QUESTION OF LAW

QUESTION OF FACT CAN BE PROVED BY EVIDENCE AND

QUESTION OF LAW BY STATUTE/SUBORDINATE

LEGISLATION/ CASE LAW.

HOW TO DISTINGUISH PRECEDENTS?

BY DISTINGUISHING FACTS;

BY DISTINGUISHING LAW;

BY INTERPRETING THE DECISIONS;

BY APPLYING THE DOCTRINE OF

SUB-SILENTIO

BY APPLYING THE DOCTRINE OF

PER-INCURIUM

;

WHETHER IT IS MERELY

OBITER DICTA

;

BY

IDENTIFYING

AND

THE RATIO OF THE PREVIOUS DECISION;

BY RELYING ON A FAVOURABLE DECISION OF A CO-

ORDINATE BENCH OR HIGHER COURT; AND

CHANGE IN LAW.

11

• DOCTRINE OF

SUB-SILENTIO

[CCE RAJKOT VS SURGICHEM, 1987(27)ELT548(TRIBUNAL)]

• DOCTRINE OF

PER-INCURIUM

1)[CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY VS

STATE OF MAHARASHTRA [2010(254)ELT196(SC)

]

2) KING ROTORS & AIR CHARTER P LTD VS CC(ACC&

IMPORT) MUMBAI, 2011(269)ELT343(TRI-MUMBAI)]

3) CENTRAL INDIA INSTITUTE OF MEDICAL SCIENCE VS

CC(ACC) MUMBAI, 2008(231)ELT113(TRI-MUMBAI)]

4) ASST COLLECTOR OF CENTRAL EXCISE VS DUNLOP

INDIA LTD, 1985(19) ELT22(SC)]

• WHAT IS

RATIO DECIDENDI

[NICHOLAS PIRAMAL (I) LTD VS CCE, THANE-1,

2008(232)ELT37(TRI-LB)]

• OBITER DICTA

[ MOHANDASS ISSARDAS VS COLLECTOR OF CUSTOMS,

2000(125) ELT 206(BOM)]

• ALL POINTS OF PARTY’S REPLY TO BE ADDRESSED

• WRITE THE O-IN-O IN INDIRECT SPEECH

• CHECK CORRECTNESS OF PREAMBLE WHENEVER YOU

JOIN NEW POSTING

• GET DRAFT ORDER VETTED

• DO NOT GIVE DATE BELOW SIGNATURE IN F/C OF O-IN-O

• CHECK PRESENT POSITION OF CASES REFERRED AND

RELIED UPON

• CHECK BOARD’S CIRCULAR/INSTRUCTIONS ON THE ISSUE

• CAREFUL WITH RTI REPLIES WHERE THEY MAY EFFECT O-

IN-O

• SIGN ON EACH PAGE OF O-IN-O

• DO NOT ISSUE O-IN-O DIRECTING AC/SUPDT TO QUANTIFY

AMOUNT.

• IF THERE IS SUBSTANTIAL ERROR IN THE O-IN-O WHICH

CANNOT BE ADDRESSED BY A CORRIGENDUM, REVIEW

SHOULD BE PROPOSED.[ CIRCULAR NO 502/68/99-CX DT

16/12/99]

• COMMR(A)

TO

MAINTAINABLE

PROCEEDINGS)

FIRST

OR NOT

DECIDE

(EG.

WHETHER

AGAINST

APPEAL

RECOVERY

• IF SAME ISSUE PENDING WITH HIGHER ADJUDICATING

AUTHORITY SCN TO BE TRANSFERRED TO THE SENIOR

OFFICER

[ CIRCULAR NOS 362/78/97-CX DT 9-12-1997 AND

752/68/2003-CX DT 1-10-2003].

• ORDERS IN FAVOUR OF REVENUE ALSO NEED TO BE

SCRUTINISED

• NAME, DEGN, MOBILE NO AND RESIDENCE TEL NO OF

MAIN INVESTIGATING OFFICERS IN THE SCN

THANK YOU

( BUT I WILL BE WATCHING YOU)

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