Order passed Nine months after conclusion of hearing cannot survive
THIS is what the almost nine years old CENTRAL EXCISE MANUAL OF CBEC'S INSTRUCTIONS says in Chapter 13, Part-II, titled 'Adjudication' -
"4. Time limit for issue of adjudication orders : The demands on account of short levy, non-levy or erroneous refund, by reason of fraud collusion, willful mis-statement or suppression of facts shall be adjudicated within a period of one year from the date of issue of show cause notice, where it is possible { Clause (a) of Sub-section 2A of Section 11A of Central Excise Act, 1944 }. In any other case, as far as possible, the case shall be adjudicated within a period of six months {Clause (b) of Sub-section 2A of Section 11A ibid}.
All cases where personal hearings have been concluded, it is necessary to communicate the decision immediately or within a reasonable time of 5 days. If the above time limit cannot be adhered to under any circumstances, the order should be issued within 15 days or at the most one month from the date of conclusion of personal hearing (Board's Circular No. 732/48/2003-CX dated 5.8.2003)."
In many Commissionerates there are a lot many orders shown as being passed on 31st March of every year to reduce the pendency figures and also as a measure of Revenue drive but the fact of the matter is that these orders are never given birth on 31st March but see the light of the day only in the month of July or later. Apart from the Revenue drive, what drives these adjudicating authorities to pass orders @speed of light is that their appraisals heavily lean on the disposals they make in the reporting period April to March. Needless to mention, the hearings are conducted (a farcical exercise, on occasions) before or on the supposed date of the order. Before the amendments made by the Finance Act, 2005, the Review cell in the Commissionerate and at the CC office had to burn the midnight oil for the review period of one year commenced from the date of the order and not from the date of communication of the order. The assessee was not affected because for them the appeal period commenced from the date of communication of the order. Be that as it may, there have been occasions when the adjudicating authority showed the O-in-O's as being passed on 31st March but then saw himself being transferred in the Annual Transfer order. And the officer who came next had to face embarrassment in case the officer transferred did not sign the orders with back dated signatures.
The order which we are reporting today would be a godsend gift to many assessees who find such acts of the adjudicating authorities under the purported aegis of the Act byzantine.
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