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TMI Blog2018 (12) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 in CMA.No.2799 of 2018 namely the assessee - M/s.Visaka Industries Limited calling upon them to show cause as to why (i) the Proviso to Section 11A of the Act should not be invoked to demand central excise duty by invoking the extended time limit; (ii) the central excise duty amounting to Rs. 15,24,01,940/- and education cess of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our cement companies; a sample MOU between the MTPS and the assessee; sample documents pertaining to alleged incorrect lorry numbers; and a letter dated 17.2.2004 from the assessee to the MTPS. The assessee further submitted that those documents were required to 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal recorded that most of the documents were third party documents and that the assessee could not obtain them during the adjudication proceedings. He further submits that the Adjudicating Authority himself referred to whatever documents were given and this regard, has referred to paragraphs 23.01 and 23.02 of the Order-in-Original dated 06.5.2009. 18. We have carefully considered the contentions of the learned counsel on either side. 19. Rule 23 of the CESTAT Rules speaks of production of additional evidence, which reads as follows : "Rule 23-Production of additional evidence:- (1) The parties to the appeal shall not be entitled to produce any additional evidence, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the said submission of the learned counsel for the Revenue on account of the difference in the language employed in Order XLI Rule 27 of the CPC and Rule 23 of the CESTAT Rules. Rule 23 of the CESTAT Rules does not contain the conditions as contained in Order XLI Rule 27(a) and (aa) of the CPC. 23. In terms of the provisions and more particularly Order XLI Rule 27 of the CPC, the party seeking to produce additional evidence should establish that notwithstanding exercise of due diligence, he was unable to produce documents or the documents were not within his knowledge or after exercise of due diligence, they have been produced by him at the time when the decree appealed against was passed. 24. In Rule 23 of the CESTAT Rules, there appears to be a bar for the parties to the appeal to be entitled to produce additional documents. However, the Tribunal is empowered to direct the documents to be produced and the circumstances, under which, the Tribunal can exercise powers, have been enumerated in Sub-Rule (1) of Rule 23 of the CESTAT Rules. Apart from that, the Tribunal is suo motu empowered to call for documents or summon any witness on points at issue, if it considers necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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