B.B. Goel vs Union Of India & Another
2010 Latest Caselaw 2380 Del

             THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Judgment delivered on: 04.05.2010

+            W.P.(C) 1680/2010 & WP(C) 1684/2010

B.B. GOEL                                                       ..... Petitioner

                                        - versus -

UNION OF INDIA & ANOTHER                                        ..... Respondents

Advocates who appeared in this case:-

For the Petitioner : Mr C. Hari Shankar with Mr S. Sunil For the Respondent No.1 : Mr Roshan Lal Goel For the Respondents 2 & 3 : Mr Mukesh Anand with Mr R. C. S. Bhadoria, Mr Shailesh Tiwari and Mr Sumit Batra

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

BADAR DURREZ AHMED, J

1. In these writ petitions, which raise common issues, the petitioner

seeks the quashing of the order-in-original dated 18.12.2009 passed by the

Commissioner of Central Excise (Adjudication) insofar as it operates

against him. A prayer has also been made seeking a direction restraining

the respondents from taking any coercive action against the petitioner

pursuant to the impugned order-in-original dated 18.12.2009. Similar issues

have been decided by us on 26.04.2010 in WP(C) 1677/2010, WP(C)

1112/2010 and WP(C) 2303/2010.

WP(C) Nos.1677/2010, 1112/2010 & 2303/2010 Page No.1 of 5

2. The sequence of events leading up to the filing of the writ

petitions began with the issuance of show cause notices to several exporters

as well as to the present petitioner, who is an officer of the Department.

Certain other officials of the Central Excise and Customs Departments,

other than those involved in WP(C) 1677/2010, WP(C) 1112/2010 and

WP(C) 2303/2010, were also issued show cause notices and they have also

filed writ petitions but their case is somewhat different and, therefore, we

are only dealing with the present official, namely, Mr B.B. Goel. The

petitioner has filed WP(C) No.1680/2010 and WP(C) No.1684/2010. The

petitioner was alleged to be involved in the activities concerning two

exporters, namely, Buildex Metals and National Steel Products Company

Limited.

3. The said show cause notices were adjudicated by the

Commissioner of Central Excise (Adjudication) by the order-in-original

passed on 30.10.2006.

4. Thereafter, the exporters, namely, Buildex Metals and National

Steel Products Company Limited as well as several other exporters filed

appeals before the Central Excise and Service Tax Appellate Tribunal in

respect of the said order-in-original. The revenue, however, did not file any

appeal in respect of the order-in-original pertaining to Buildex Metals and

National Steel Products Company Limited. There were allegations against

the petitioner, namely, B.B. Goel in the show cause notice issued to him.

However, in the order-in-original referred to above, the petitioner has been

WP(C) Nos.1677/2010, 1112/2010 & 2303/2010 Page No.2 of 5 exonerated and no penalty was levied on him. Thus, the position is clear

that insofar as the petitioner - Mr B.B. Goel - is concerned, no appeal was

filed by the revenue in respect of him nor was any appeal filed by the

revenue in respect of Buildex Metals or National Steel Products Company

Limited in connection with which, notice had been issued to the petitioner.

However, Buildex Metals and National Steel Products Company Limited

had preferred appeals against the order-in-original dated 30.10.2006 before

the Tribunal. The present petitioner was, however, not made a party to

those appeals inasmuch as Buildex Metals and National Steel Products

Company Limited were not at all concerned with the order of exoneration of

the present petitioner, namely, Mr B.B. Goel. This is an admitted position.

5. However, in the appeals filed by the exporters including Buildex

Metals and National Steel Products Company Limited as well as some other

appeals filed by the revenue, the Tribunal, after hearing the parties thereto,

set aside the order-in-original dated 30.10.2006 and remanded the matters

for de novo consideration by the Commissioner of Central Excise

(Adjudication). Subsequent thereto, the Commissioner of Central Excise

(Adjudication) passed fresh orders-in-original on 18.12.2009 and

29.12.2009. This time, however, a penalty of Rs 1.5 lacs was imposed on

Mr B.B. Goel, in two of the cases.

6. The grievance of the petitioner is that there was no matter

pending before the Tribunal pertaining to the present petitioner when the

order of remand was made. Therefore, there was no question of his case

WP(C) Nos.1677/2010, 1112/2010 & 2303/2010 Page No.3 of 5 being re-considered by the Commissioner of Central Excise (Adjudication),

when he conducted his de novo adjudication. Consequently, no penalty

could have been imposed on the petitioner. The learned counsel for the

petitioner also submits that the department had accepted the finding of the

Commissioner of Central Excise in the first round whereby the petitioner

had been exonerated. The department had consciously decided not to prefer

any appeal and, therefore, no appeals were filed against the order-in-original

dated 30.10.2006, insofar as the present petitioner is concerned.

7. We have heard the counsel for the parties and are of the view

that the submissions made by the petitioner ought to be accepted. The

reason for this is very simple. The petitioner was not a party before the

Tribunal when the order of remand was passed by the Tribunal. He was

neither made a party by the exporters nor by the revenue and there was no

question of the petitioner having filed any appeal because he had already

been exonerated by the Commissioner of Central Excise (Adjudication).

Therefore, the order passed by the Tribunal, whereby the matter was

remanded for de novo consideration, could not, in any event, affect the

petitioner in any way. The petitioner had specifically brought to the notice

of the Commissioner of Central Excise (Adjudication) in the course of the

de novo proceedings that no proceedings could be taken up against the

petitioner in view of the fact that he was not a party before the Tribunal and

that, in any event, the earlier order-in-original, insofar as the petitioner was

concerned, had already been accepted by the department. Despite this, the

Commissioner of Central Excise (Adjudication), in the second round of

WP(C) Nos.1677/2010, 1112/2010 & 2303/2010 Page No.4 of 5 adjudication, imposed a penalty on the petitioner. We are of the view that

this could not have been done in the facts and circumstances of the case.

The remand by the Tribunal did not relate to the petitioner as he was not a

party before the Tribunal.

8. As a consequence, the impugned order-in-original dated

18.12.2009 is set aside to the extent it relates to the petitioner in respect of

the subject matter of the present petitions. The writ petitions are allowed to

this extent. The parties shall bear their own respective costs.

The writ petitions stand disposed of.

BADAR DURREZ AHMED, J

V.K. JAIN, J May 04, 2010 SR

WP(C) Nos.1677/2010, 1112/2010 & 2303/2010 Page No.5 of 5