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IMPROVING ADJUDICATION

IMPROVING ADJUDICATION. 1 ST 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.

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IMPROVING ADJUDICATION

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  1. IMPROVING ADJUDICATION 1ST FEBRUARY, 2013 BY SHRI A.K.PRASAD CHIEF COMMISSIONER OF CENTRAL EXCISE, MYSORE ZONE

  2. 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 SUB- RULE 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.

  3. 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)]

  4. YOU CANNOT COLLECT ANY MORE EVIDENCE AFTER ISSUE OF SCN • 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. • 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)

  5. 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. • 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)

  6. SCN/ HEARING NOTICE SHOULD BE SERVED IN THE MANNER PRESCRIBED IN THE ACT. • YOU MUST SEND IT BY REGISTERED POST/SPEED POST WITH ACKNOWLEDGEMENT DUE/PRESERVE ACKNOWLEDGEMENT. • AND ONLY IF YOU PRODUCE THE ACKNOWLEDGEMENT IS THE NOTICE CONSIDERED SERVED. • 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)

  7. 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)]

  8. 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)

  9. 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 A REHEARING BINAYKIA SYNTHETICS VS CC 2008 (224) ELT 294 (T) • IF CORRIGENDUM/ ADDENDUM IS ISSUED TO THE NOTICEE AFTER THE HEARING, RE-HEAR THE MATTER RAYMOND LTD. VS CCE 2008 (224) ELT 413 (T)

  10. PENALTY • COMBINED PENALTY UNDER DIFFERENT SECTIONS NOT TO BE IMPOSED. • RECENT DECISION OF THE SUPREME COURT IN THE CASE OF DHARMENDRA TEXTILES (2008 (231) ELT 3 (SC)). • 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]

  11. QUESTION OF FACT AND QUESTION OF LAW • 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 CO-ORDINATE BENCH OR HIGHER COURT; AND • CHANGE IN LAW.

  12. 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)]

  13. 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)]

  14. 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

  15. CAREFUL WITH RTI REPLIES WHERE THEY MAY EFFECT O-IN-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)

  16. 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

  17. THANK YOU ( BUT I WILL BE WATCHING YOU)

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