2015 (12) TMI 871 - HC - Central Excise

What is the effect of non-production by the Department in its appeal before the CESTAT of the original records such as RG-1 register and RT-1 returns which have been referred to by the Commissioner (Appeals) in the order under appeal in favour of the Assessee - Held that - Commissioner (Appeals) had, while allowing the appeal filed by the Assessee, referred to the RG-1 register as well as RT-1 returns and rendered a finding that the utilization of the pouches shown in the loose papers tallied with the production figures shown in the RG-1 register as well as RT-12 return. The specific finding was that each and every entry written for the receipt of pouches in the loose papers is duly correlated with purchase invoice issued by raw material supplier. However, during the pendency of the appeal before the CESTAT, the original records were unable to be produced by the Department. In the circumstances, by its order dated 5th October 2015 this Court directed the Revenue to produce before it the original records and also file an affidavit in that regard. - CESTAT was required to examine the effect of non-production by the Department of the original records such as RG-1 registers and the RT-1 returns particularly considering that the findings rendered by the Commissioner (Appeals) in favour of the Assessee was on the basis of the said original records. - Decided in favour of assessee.

Summary

Issues:
Appeal under Section 35-G of the Central Excise Act against CESTAT's final order - Effect of non-production of original records by the Department before CESTAT - Examination of findings based on original records by Commissioner (Appeals) in favor of Assessee.

Analysis:
The judgment involves an appeal under Section 35-G of the Central Excise Act by the Assessee against the final order of the Customs Excise and Service Tax Appellate Tribunal (CESTAT). The CESTAT had allowed the appeal of the Commissioner of Central Excise, setting aside the Order-in-Appeal passed by the Commissioner (Appeals) and the order-in-original passed by the Additional Commissioner. The primary question of law framed for consideration was the effect of non-production of original records by the Department before the CESTAT, specifically the RG-1 register and RT-1 returns referred to by the Commissioner (Appeals) in favor of the Assessee.

During the appeal hearing, it was highlighted that the Commissioner (Appeals) had made findings based on the RG-1 register and RT-1 returns, correlating the utilization of pouches with production figures. However, the original records were not produced by the Department before the CESTAT. In response, the Court directed the Revenue to produce the original records and file an affidavit regarding their unavailability. The Assistant Commissioner stated that the case file was not traceable despite efforts to locate it, even mentioning that the RG-1 register was not available when the matter was listed before the CESTAT.

The Court emphasized that the CESTAT was obligated to assess the impact of the Department's non-production of original records, considering that the findings in favor of the Assessee were based on those records. Consequently, the Court set aside the CESTAT's order and remanded the appeal for a fresh decision. The CESTAT was instructed to address the effect of non-production of original records relied upon by the appellate authority in favor of the Assessee. The appeal was scheduled for further proceedings on a specified date, and the present appeal and application were disposed of accordingly.

In conclusion, the judgment addressed the critical issue of the Department's failure to produce essential original records before the appellate authority, emphasizing the importance of such records in rendering decisions. The Court's decision to remand the matter for reevaluation underscores the significance of ensuring all relevant evidence is presented for a fair and just determination in excise matters.