JUDGMENT

The petitioner has approached this Court being aggrieved by Ext.P5 order of the First Appellate Authority (order in Appeal No.COC-.EXCUS-000-APP-662-2023 dated 17-10-2023).

2. Sri. Anil D. Nair, the learned Senior Counsel appearing for the petitioner on the instructions of Adv. Telma Raju, would submit that Ext.P5 order is liable to be set aside on one short ground. He submits that though orders of the Customs Excise and Service Tax Appellate Tribunal (CESTAT), Delhi, and the CESTAT, Chennai, where identical issues were considered by the Tribunal, were placed before the First Appellate Authority, a reading of the order of the First Appellate Authority does not show that those decisions were considered by the First Appellate Authority. It is pointed out that the First Appellate Authority conveniently ignored the decisions placed before him for consideration and also proceeded to hold that the order issued by his predecessor in an identically situated case also could not be considered since that order was not challenged only on account of the litigation policy.

3. The learned Standing Counsel appearing for the respondents referred to the counter affidavit filed in the writ petition. He also referred to Ext.P5 order to contend that though the operative portion of the order does not refer to the decisions cited on behalf of the petitioner, a reading of the order in its entirety will clearly show that the First Appellate Authority had considered the decisions placed before him and had taken a decision after being aware of the law laid down in those decisions. It is submitted that no fault could be found with the First Appellate Authority for having refused to follow the view taken by his predecessor, as it is open to the First Appellate Authority to take a different view in the facts and circumstances of each case. It is submitted that the earlier order in favour of the petitioner was not challenged only on account of the litigation policy. Reference is made in this regard to Ext.R1(a) produced along with the counter affidavit.

4. Having heard the learned Senior Counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents, I am of the view that the writ petition can be allowed on the short ground that the order of the First Appellate Authority (Ext.P5) does not indicate that he had considered the decisions of the Tribunal, which according to the petitioner are squarely in its favour. While it may be open to the First Appellate Authority to draw his own conclusions from the view taken by the Tribunal in the decisions placed before him, the order must show that he was alive to the factual circumstances and to the view taken by the Tribunal in decisions placed before him by the petitioner, and there must be some discussion in the order as to why those decisions are not applicable in the case of the petitioner. In the absence of any such discussion, it can only be held that the order of the First Appellate Authority in this case is a non speaking order.

In the light of the above, this writ petition is allowed.

Ext.P5 is quashed. Ext.P4 appeal filed by the petitioner will stand restored to the files of the 2nd respondent who shall pass fresh orders after affording an opportunity of hearing to the petitioner.

Sd/-

GOPINATH P.

JUDGE ats APPENDIX OF WP(C) 39241/2023 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE DATED

21.3.2019 BEARING REFERENCE NO.34/2019/ST ISSUED BY THE 1ST RESPONDENT.

Exhibit P2 TRUE COPY OF REPLY DATED 6.5.2019 FILED BY THE PETITIONER.

Exhibit P3 TRUE COPY OF ORDER DATED 30.3.2021 ISSUED BY THE 1ST RESPONDENT.

Exhibit P4 TRUE COPY OF APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 20.4.2021.

Exhibit P5 TRUE COPY OF ORDER DATED 17.10.2023 PASSED BY THE 1ST RESPONDENT.

Exhibit P6 TRUE COPY OF ORDER DATED 20.8.2020 FOR THE PERIOD 2014-15 TO 2015-16.

Exhibit P7 True copy guidline dated 11.3.2015.

RESPONDENTS’ EXHIBITS Exhibit-R1(a) True copy of CBEC instructions -F.No.390