2007 (6) TMI 372 - AT - Central Excise

Issues Involved:
1. Compliance with Tribunal's specific directions in the remand order.
2. Availability of original documents for perusal.
3. Opportunity for cross-examination.
4. Admissibility and use of photocopied evidence.
5. Conduct and attitude of the Commissioner in de novo adjudication.

Issue-wise Detailed Analysis:

1. Compliance with Tribunal's Specific Directions in the Remand Order:
The Tribunal had remanded the matter for de novo consideration with specific directions, including a time limit of six months for re-adjudication, granting an opportunity for cross-examination, and making the original note-book available for perusal by the appellants. The Commissioner failed to comply with these directions. The adjudication was done after more than 12 years without adhering to the terms of the remand order or seeking modification from the competent forum. The Tribunal emphasized that the Commissioner should have either complied with the directions or sought appropriate modifications from the Tribunal.

2. Availability of Original Documents for Perusal:
The original diary, which was a crucial document, was not made available for perusal by the appellants. The Commissioner noted that the Income Tax Department had handed over the diary to Shri Ashwani Kumar Jaura, who reportedly destroyed it. The Tribunal found it unconvincing that the Department did not act with urgency to retrieve the document from the Income Tax authorities. The Tribunal criticized the Commissioner for not bringing this issue to the Tribunal's notice to seek appropriate modifications to the remand order.

3. Opportunity for Cross-Examination:
The Tribunal had directed that the appellants be given the opportunity to cross-examine Shri Swaran Jaura, the author of the diary. The Commissioner did not comply with this direction, concluding that cross-examination would not alter the case's outcome. The Tribunal held that this amounted to judicial indiscipline and failure to comply with the remand order. The Commissioner's decision to ignore the Tribunal's specific direction was deemed inappropriate.

4. Admissibility and Use of Photocopied Evidence:
The Commissioner relied on the photocopy of the diary as evidence, arguing that the authenticity and veracity of the entries were not challenged by the assessee. The Tribunal noted that while the photocopy was made available to the assessee, the original document's destruction and the failure to provide a legible copy undermined the principle of natural justice. The Tribunal held that the Commissioner should have sought modifications from the Tribunal regarding the use of photocopied evidence if the original was unavailable.

5. Conduct and Attitude of the Commissioner in De Novo Adjudication:
The Tribunal criticized the Commissioner's conduct and attitude in handling the de novo adjudication. The Commissioner's observations and comments, such as describing the Tribunal's order as a "boon and an armour to the assessee" and expressing frustration with the Income Tax Department's role, were deemed unwarranted. The Tribunal emphasized that the Commissioner should have adhered strictly to the remand order or filed an appeal against it. The Tribunal found the Commissioner's handling of the case to be casual and objectionable, warranting the Chairman of CBEC's attention for appropriate action.

Conclusion:
The Tribunal set aside the Commissioner's order due to non-compliance with the remand order's specific directions, failure to provide the original document and opportunity for cross-examination, and the inappropriate conduct of the Commissioner. The appeals were allowed with consequential relief, and a copy of the order was endorsed to the Chairman, CBEC, for information and appropriate action.

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