2018 (12) TMI 1179 – MADRAS HIGH COURT – TMI – Principles of natural justice – infraction of Rule 23 of the CESTAT Rules – whether the veracity of the receipt of fly ash from outside sources to the extent claimed by the assessee was correct or not? – Held that:- Sub-Rule (1) of Rule 23 of the CESTAT Rules states that the parties to the appeal shall not be entitled to produce any additional evidence either oral or documentary. But, if the Tribunal is of the opinion that any documents should be produced or any witness should be examined or any affidavit should be filed to enable it to pass orders or for any sufficient cause or if the Adjudicating Authority or Appellate or Revisional Authority has decided the case without giving sufficient opportunity to a party to adduce evidence, the Tribunal may, for reasons to be recorded, allow such documents to be produced or witnesses to be examined or affidavit to be filed.
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The Tribunal was justified in remanding the matter to the Adjudicat
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ional evidence in the appellate stage ? ii. Has not the Tribunal fallen in error in allowing the miscellaneous application in the absence of sufficient reason for not producing these documents at the stage of adjudication ? iii. Has not the Tribunal fallen in error in allowing the additional documents to be considered, when there was no mention of such documents by the respondent at any point of adjudication ? And iv. Has not the Tribunal fallen in error in ignoring the settled position of law that it is the assessee, who has to strictly prove that it has satisfied the conditions to avail the benefit of exemption ? 3. We have heard Mr.Rajnish Pathiyil, learned Senior Standing Counsel appearing for the appellant/Revenue and Mr.Raghavan Ramabadran, learned counsel appearing for M/s.Lakshmi Kumaran & Sridharan Associates, learned counsel on record for the respondents. 4. The Commissioner of Customs and Central Excise, Salem issued a show cause notice dated 07.4.2008 to the respondent
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ee in the wrong availment of Notification No.6/ 2002/CE by way of bogus/excess accounting of fly ash resulting in evasion/ non payment of central excise duty of ₹ 15,37,57,177/-. 6. The respondents herein filed their respective reply dated 02.5.2008 and 21.7.2008 to the said show cause notice and the matter was taken up for adjudication by the Commissioner of Central Excise. By an Order-in- Original dated 06.5.2009, the proposals in the said show cause notice were confirmed after rejecting the contentions of the respondents herein. 7. The issue, which was to be decided by the Adjudicating Authority, was as to whether the veracity of the receipt of fly ash from outside sources to the extent claimed by the assessee was correct or not. 8. The assessee made their submissions, which were considered by the Adjudicating Authority and primarily, the Adjudicating Authority came to the conclusion that the assessee had not produced any documents to establish that they procured fly ash from
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substantiate their claim that they received the requisite quantity of 25% fly ash during the relevant periods namely 2003-04 and 2004-05 and that a perusal of those documents was essential to the Tribunal to enable to pass appropriate orders. 11. The assessee further stated that some of the documents were already produced before the Adjudicating Authority and in this regard, the assessee referred to paragraph 21.08 of the Order-in-Original, which had referred to such documents. The assessee's further case was that the Adjudicating Authority did not properly consider those documents. Hence, the assessee requested the Tribunal to exercise its powers under Rule 23 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (hereinafter called the CESTAT Rules) and take on record the additional evidence. 12. By the impugned order, the Tribunal, after considering the case of the assessee and that of the Revenue, opined that the documents were required to be consid
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produce sufficient reasons as to why they could not produce the documents at the stage of adjudication. Thus, the Tribunal fell into error in allowing the additional documents to be considered when there was no mention of documents at any point of time. 16. The learned Senior Standing Counsel for the Revenue has relied upon the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin [reported in 2012 (8) SCC 148] to support his contention that the Appellate Tribunal should not allow new evidence to be adduced in order to enable parties to raise a new point in the appeal and where a party, on whom the onus of proving a certain point lies, fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. It is further submitted by the learned Senior Standing Counsel for the Revenue tha
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vidence, either oral or documentary, before the Tribunal, but if the Tribunal is of opinion that any documents should be produced or any witness should be examined or any affidavit should be filed to enable it to pass orders or for any sufficient cause, or if adjudicating authority or the appellate or revisional authority has decided the case without giving sufficient opportunity to any party to adduce evidence on the points specified by them or not specified by them, the Tribunal may, for reasons to be recorded, allow such documents to be produced or witnesses to be examined or affidavits to be filed or such evidence to be adduced. (2) The production of any document or the examination of any witness or the adducing of any evidence under Sub-Rule (1) may be done either before the Tribunal or before such departmental authority as the Tribunal may direct. (3) Where any direction has been made by the Tribunal to produce any documents or to examine any witnesses or to adduce any evidence b
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ts to be produced or witnesses to be examined or affidavit to be filed. Sub-Rule (2) empowers production of any documents may be done either before the Tribunal or before such Departmental Authority as the Tribunal may direct. Sub-Rule (3) mandates that when such a direction is issued by the Tribunal, the Authority shall comply with the direction. Sub- Rule (4) directs the Tribunal to exercise power on its own to call for any documents or summon any witness on points at issue if it considers it necessary to meet the ends of justice. 21. The learned Senior Standing Counsel for the Revenue submits that Rule 23 of the CESTAT Rules is akin to Order XLI Rule 27 of the Civil Procedure Code (CPC) and in the instant case, the assessee sought to produce additional evidence without any specific pleadings as to why they did not produce the same before the Adjudicating Authority. 22. We are not fully convinced with the said submission of the learned counsel for the Revenue on account of the differ
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s suo motu empowered to call for documents or summon any witness on points at issue, if it considers necessary to meet the ends of justice in exercise of its powers under Rule 23(4) of the CESTAT Rules. Therefore, the phraseology and language of Order XLI Rule 27 of the CPC and Rule 23 of the CESTAT Rules is differently worded. 25. In the instant case, the Adjudicating Authority has recorded in paragraph 23.01 of the Order-in-Original that the quantity delivered to the assessee as per the MTPS records was found to be reflected in the private register of M/s.Natesan Engineers and Contractors and that there was no dispute over this. The dispute, therefore, appears to be with regard to the quantity received from outside allottees by M/s.Natesan Engineers and Contractors. Mr.Santhoshkumar, Managing Director deposed in his cross examination held on 19.11.2008 that he had evidence to show the procurement of fly ash from other sources. The explanation given by the assessee was that those were
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ich of the documents are required to enable it to pass orders. We find that there is no error in the exercise of such discretion. Furthermore, the assessee's case is that they were not given sufficient opportunity. 28. The learned Senior Standing Counsel for the Revenue has relied upon the decision of the Hon'ble Supreme Court in the case of Ibrahim Uddin. The said decision arose out of a civil litigation and the Court found that there were absolutely no pleadings and that there was no evidence with regard to a Will. Interpreting Order XLI Rule 27 of the CPC, the decision was rendered. In the preceding paragraphs, we have pointed out the difference in the phraseology and language in Order XLI Rule 27 of the CPC and Rule 23 of the CESTAT Rules. Therefore, we are of the considered view that the decision in the case of Ibrahim Uddin would not render any assistance to the case of the Revenue. For the above reasons, we find that there is no error in the order passed by the Tribunal.
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