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2016 (4) TMI 766 - BOMBAY HIGH COURT

2016 (4) TMI 766 - BOMBAY HIGH COURT - 2016 (336) E.L.T. 601 (Bom.) - Validity of Tribunal's order - Non compliance with principles of natural justice and made error in not reading into evidence the opinion of Indian Institute of Technology though a copy of its report was on its file - Held that:- Tribunal's order is vitiated for want of consideration of a vital and valid ground of appeal i.e. non compliance with principles of natural justice and a patent error in not reading into evidence the o .....

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stom Appeal No. 18 of 2010, Notice of Motion No. 1355 of 2010, Notice 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 o .....

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round 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 finding that there was no substance in the grievance about total non application of mind by the adjudicating authority so far as its failure to consider the IIT report on the ground that there was no evidence that the appellant had submitted IIT report to the Ld. Commissioner though .....

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pellants while others are impleaded as Respondent nos.4 and 5. 5. We have heard the learned Senior Counsel appearing for these parties and Mr.Jetly, learned Counsel appearing for the Revenue. 6. The brief facts are that the deceased had imported 3500 metric tons of goods described more particularly in paragraph (3) of the Memo of Appeal. It is his claim that the consignments were examined by proper Officers of the Customs and cleared on payment of appropriate Customs duty. However, the Special I .....

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of Technology, Powai, Mumbai. The representative samples were drawn and forwarded to the Chemical Examiner, and the investigation, then, resulted in the statement of the deceased being recorded. Though the consignment was cleared under a Bill of Entry dated 22nd March,2005, a notice to show cause was issued by the Deputy Commissioner of Customs attached to Special Investigation and Intelligent Branch dated 2nd June,2006. The Appellants through the Advocate replied to this notice and sought copi .....

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peal 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 the .....

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f the Customs Act by him. In paragraph (6) of its order, the retraction is also referred. Yet, the Tribunal finds that there is no necessity of supplying copy of such statement nor has it resulted in miscarriage of justice. That reasoning and by attributing the knowledge of the contents of the statement to the Appellant's predecessor-in-title that the first ground was rejected. 11. Then comes the next and more important ground based on which the Appellants submitted that if there was a repor .....

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ce in that regard was made to letter dated 3rd July,2008. Alongwtih that, the report was filed and which report discloses that the goods imported by the Appellant's predecessor were 'industrial soap flakes Grade II' and not 'soap noodles'. Paragraph 18 of the Tribunal's order refers to the contents of the letter dated 3rd July,2008 and the report of the IIT. 13. However, the Tribunal, then, refers to letter dated 31st March,2007 as well to conclude that the records nowher .....

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notice. If that report or its copy was never supplied, then, non consideration thereof can never be fatal in the opinion of the Tribunal. 14. This Court admitted the appeal after a prima 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 .....

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ubmitted 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, was not in his file but with another section in the Customs Department. 17. We are not impressed by this submission .....

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ated 21st May,2010 that the sample has been drawn and sent to IIT, Mumbai for test. However, it is requested to obtain and forward a copy of the test report to the same in compliance with the order in appeal. 18. We do not see why the Revenue sought such an information. 19. Apart from the fact that on 8th June,2010 the predecessor-in-title of the Appellants also sought this information and particularly with regard to the test report from IIT and was informed that no record of the Test Report of .....

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e seen that lot of correspondence has gone by on this point and between the parties. We are not concerned with the correctness of the replies that were given to the applications under the Right to Information Act,2005. Once it is not seriously disputed that such a report is in existence and duly forwarded to one Section in the Commissionerate, then, larger interest of justice demands that the Tribunal should have allowed the parties to refer to it and if the Assessee desires to rely on it, allow .....

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essitate 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 referr .....

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facts and circumstances, remanded and sent back to the Adjudicating Authority, rather restoration of the appeal to the file of the Tribunal and for consideration afresh on merits and in accordance with law would serve the interest of justice. We, therefore, quash and set aside the order of the Tribunal and restore the appeal of the Assessee to its file for fresh consideration. While fresh consideration thereof, the Tribunal should allow the Appellants to raise the ground particularly of noncompl .....

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