TMI Blog2016 (4) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of Motion No. 755 of 2013, Notice of Motion No. 1108 of 2014, Notice Of Motion (Appeals) No. 1432 of 2013 - - - Dated:- 11-4-2016 - S. C. Dharmadhikari And G. S. Kulkarni, JJ. For the Petitioner : Mr.R.V.Desai, Senior Counsel with Mr.Rohit Pardeshi i/b. Mr.Rakesh K.Singh For the Respondent : Mr. Pradeep S.Jetly with Mr.Jitendra B.Mishra, Mr.Arshad Hidayatullah, Senior Counsel i/b. M/s.Kachwala Misar ORDER P. C. 1. At the hearing of these Notices of Motion, we had indicated to the parties that the Court would dispose of Appeal itself for it involves a very short point. 2. This appeal was admitted by this Court on 22nd March,2010 on the following two substantial questions of law: (a) Whether finding recorded by Hon'ble Tribunal in para 12 of the impugned order that Appellants already had a copy of the statements and the appellants were fully aware of the contents of the statements is perverse, particularly in the background of the finding recorded in para 5 of the impugned order that the statements were never given to the Appellant either along with show cause notice or at any time thereafter. (b) Whether the Tribunal erred in its findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pert whose report was relied upon by the Revenue. Thereafter, an interim reply was forwarded. However, the grievance is that the demand raised in the Show Cause Notice was confirmed without sufficient opportunity being given and afforded to the Appellant's predecessor in title. 7. That is how the order passed by the Adjudicating Authority dated 13th December,2008 was impugned in the appeal before the Customs, Excise Service Tax Appellate Tribunal. 8. Two grounds were urged and one of which was non compliance with principles of natural justice. 9. These grounds having not been accepted that the Tribunal's order dated 11th June, 2009 is impugned in this appeal. 10. Both the learned Senior Counsel Mr.R.V.Desai and Mr.Arshad Hidayatullah urged that the Tribunal failed to apply its mind to a very important issue and which was squarely raised. The Tribunal referred to these grounds in paragraph (2) and eventually concluded that the copy of the statement recorded was not given to the Appellant's predecessor-in-title along-with the show cause notice or at any time thereafter. However, the Tribunal proceeded on the footing that the Appellant's predecessor-in-ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie view and taken from the contents of the Memo of Appeal. At the hearing of this appeal, we indicated to both sides that calling and summoning the original records would take care of the whole issue and controversy. If the original records and from the file of the Tribunal as also the Adjudicating Authority are summoned, they would indicate whether the Appellants at all had supplied any copy of the report of IIT to the Adjudicating Authority. That is how the original records were called for by our earlier order and the parties through their Counsel were permitted to inspect them. The matter was placed before us for further hearing after the inspection of the records was completed. 15. After the records were inspected, the Senior Counsel appearing for the Appellants and the supporting Respondents submitted that along-with the letter referred by the Tribunal and by us as above, there was indeed a copy of the report of IIT supplied to the Adjudicating Authority. 16. This submission is countered by Mr. Jetly, learned Counsel appearing for the Revenue and submitting that though a letter was issued addressed to the Adjudicating Authority, the report stated to be accompanying it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before the Tribunal, at least should have been accepted by the Tribunal. 22. That it would have been advisable at that stage itself to look into that document and consider it, but possibly the Tribunal thought that it would necessitate a remand, that it dealt with the matter on the available material. To our mind, when the report relied upon by the Revenue and the one produced by the Assessee contain different conclusions and observations and there is divergence of opinion between the experts in the field, then, all the more the prejudice is established and proved. 23. We are of the firm opinion that the Tribunal's order is, therefore, vitiated for want of consideration of a vital and valid ground of appeal referred by us above. That ground was squarely raised in the Memo and pressed during the oral arguments. The Appellants should have been given complete opportunity to press that ground on merits and non furnishing of such an opportunity, therefore, results in Tribunal's order being ex-facie illegal. It is vitiated by an error apparent on the face of the record. 24. We proceed to quash and set aside the impugned order of the Tribunal. 25. We do not think ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
