Transcript ImprovingAdjudication - Mysore Central Excise, Customs and

IMPROVING ADJUDICATION
1ST 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 SUBRULE 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 CC- 1989(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)]
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YOU CANNOT COLLECT ANY MORE EVIDENCE AFTER ISSUE OF
SCN
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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.
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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.
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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)
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SCN/ HEARING NOTICE SHOULD BE SERVED IN THE MANNER
PRESCRIBED IN THE ACT.
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YOU MUST SEND IT BY REGISTERED POST/SPEED POST WITH
ACKNOWLEDGEMENT DUE/PRESERVE ACKNOWLEDGEMENT.
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AND ONLY IF YOU PRODUCE THE ACKNOWLEDGEMENT IS THE
NOTICE CONSIDERED SERVED.
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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 ADJUDICATING AUTHORITY REQUIRES
REHEARING
BINAYKIA SYNTHETICS VS CC 2008 (224) ELT 294 (T)
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IF CORRIGENDUM/ ADDENDUM IS ISSUED TO THE NOTICEE
AFTER THE HEARING, RE-HEAR THE MATTER
RAYMOND LTD. VS CCE 2008 (224) ELT 413 (T)
A
PENALTY
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COMBINED PENALTY UNDER DIFFERENT SECTIONS NOT TO
BE IMPOSED.
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RECENT DECISION OF THE SUPREME COURT IN THE CASE OF
DHARMENDRA TEXTILES (2008 (231) ELT 3 (SC)).
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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]
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QUESTION OF FACT AND QUESTION OF LAW
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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 THE RATIO OF THE PREVIOUS DECISION;
AND
BY RELYING ON A FAVOURABLE DECISION OF A COORDINATE BENCH OR HIGHER COURT; AND
CHANGE IN LAW.
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• 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 OIN-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 FIRST DECIDE WHETHER APPEAL
MAINTAINABLE OR NOT (EG. AGAINST RECOVERY
PROCEEDINGS)
• 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)