SPS Steel Rolling Mills Ltd. vs CESTAT

Harish Tandon, J.—The Court-The order dated 26th of November, 2013 passed by the CESTAT is a subject matter in this writ petition. By the said order an application seeking waiver of pre-deposit condition is disposed of by directing the petitioner to deposit 25 per cent of the demand within eight weeks from that date. The finding recorded by the CESTAT appears to be based on the consideration which is extraneous to what was required to be considered for disposing of the said application. It appears that initially the order was passed by the adjudicating officer and the matter reached to the Tribunal. By an order dated 26th of November, 2007 [2009 (237) E.L.T. 319 (Tri.-Kol.)], the Tribunal remanded the matter to the adjudicating officer for passing the fresh order. The finding recorded in the said order of remand revealed that the adjudicating officer founded the consideration only on the clearances to the interconnected undertakings and failed to avert to the other legal points canvassed by the petitioner before the said authority. The length and breadth of the said order indicates that this was an open remand and not the limited one. The matter was again decided by the adjudicating officer and the said order was again carried to the CESTAT. A point was raised before the Tribunal that the verification report, which was relied upon, was not supplied to the petitioner. The said order was again set aside by the CESTAT with a specific direction upon the adjudicating officer to decide the matter afresh in the light of the observations made in the first order of remand. The department did not challenge the order of remand in either of the occasions. The order of remand suggests that the entire issue is at large before the adjudicating officer who is required to consider afresh, meaning thereby, it should not be influenced by the observations made in the earlier order which stood quashed and set aside while remanding the matter to the assessing officer.

In the impugned order the Tribunal have recorded that since the order of remand is not assailed, which has reached in its finality, the petitioner cannot raise the issue which has earlier been raised or not raised which passing a remand order. The aforesaid observation is contrary to the settled proposition of law. The remand was an open one and all the legal points which are available to the petitioner was kept open to be decided by the adjudicating officer.

The order of remand cannot stand in the way of raising a legal plea that the same was either raised or not raised in an earlier round of litigation. Probably, the Tribunal was trying to take shelter under Explanation IV to Section 11 of the CPC which estopped the parties to agitate the plea which was available as ground of attack or defence in an earlier proceedings and having not raised, the same cannot be re-agitated.

I am, therefore, of the view that such proposition cannot be applied when an earlier order was set aside by the CESTAT and the matter was remanded to the authority for a fresh decision. The authorities have not recorded any finding on the merit of the said application except the finding as narrated hereinabove.

This Court finds that the order impugned cannot be sustained.

The same is accordingly quashed and set aside.

The Tribunal is directed to reconsider the said application and to dispose of the same on merit in the light of the observations made hereinabove, within four weeks from date of communication of this order in accordance with law. The time indicated hereinabove is mandatory and peremptory and the CESTAT is expected to keep adherence thereof.

Mr. Sharaff, learned counsel for the respondents apprehends that despite the time bound order passed by this Court, the same is ordinarily not adhered to and insisted for keeping this writ petition alive for the purpose of compliance.

In view of the above, let this matter appear after six weeks when the respective parties would inform the Court whether the directions passed in this order has been complied with or not.

For abundant precaution, it is hereby made clear that this order shall not be construed to have any impact on the merits of the said proceeding as this Court has no occasion to go into it. It is open to the CESTAT to take an independent view without being influenced by any observations made herein. Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.