Strange Case – Commissioner (Appeals) passes two orders in same case – CESTAT sets aside both
STRANGE are the ways of our Revenue officers. Here is a classic case of a Commissioner (Appeals) who passed two orders with the same date in the same case, one in favour of the assessee and one against. The Department took the matter to the Tribunal against the order it got, but the assessee submitted that it got a different order. This is how the Tribunal described the case:
We have found this case to be unprecedented inasmuch as there are two orders of the Commissioner (Appeals) bearing the same number and date but issued on different dates. One was issued on 6.10.2008 and the same is under challenge in the present appeal of the Revenue. The other order was issued on 19.11.2008 and the same was not received by the Commissioner of Customs, Cochin , though it was received by the respondent. Both the orders were apparently passed in an appeal filed by the respondent against Order-in-Original No. 64/2008 dated 13.6.2008 passed by the Joint Commissioner of Customs (SIIB), Cochin. The statement of facts in both the orders passed by the Commissioner (Appeals) appears to be the same. The findings record in the two orders are, however, interestingly different. As the findings are different, the conclusions are also different, one going in favour of the respondent and the other against them. It is, thus, obvious that there was some confusion on the part of the lower appellate authority in the matter of disposing of the assessee's appeal filed against the Order-in-Original.
We must say that the learned Commissioner (Appeals) should have dealt with the assessee's appeal with such application of mind as expected of an appellate authority and should have avoided this baffling situation . We have to set aside both the orders of the Commissioner (Appeals) and require him to pass a speaking order afresh on the appeal filed by the assessee against the Joint Commissioner's order, after giving them a reasonable opportunity of being heard. In order to do complete justice in the case, we would invoke Rule 40 of the CESTAT (Procedure) Rules, 1982 to set aside the Order-in-Appeal issued on 19.11.2008 in the absence of an appeal. We have found enough material on record, including the cross-objections filed by the respondent and the miscellaneous application filed by the Revenue, for ourselves to invoke the Rule against the said Order-in-Appeal.
As per Rule 40, “The Tribunal shall exercise control over the departmental authorities in relation to all matters arising out of the exercise of the powers or of the discharge of the functions of the Tribunal.”
But why should the assessee be punished for the blatantly irresponsible order of a Commissioner (Appeals).