2017 (6) TMI 262 - AT - Central Excise

ROM application - submissions of the appellant were not dealt by the adjudication authority - natural justice - prayer of the appellant today is to remand the matter back to the adjudicating authority to re-adjudicate the matter considering entire evidence on record as well as the submission of the appellant - Held that - It appears that the matter has travelled for more than 12 years from its initiation and pending in Tribunal for 11 years. At this stage appellant is required to justify whether remand is necessary with the background of the case - Appellant is directed to provide details to the Learned AR by 10/05/2017 and learned AR. shall forward the same to the Adjudicating for his reply, if any, because he is the ultimate authority who shall adjudicate the matter in the event of remands - appeal allowed by way of remand.

Issues:
1. Rectification application filed before Tribunal.
2. Dismissal of the ROM application.
3. High Court's intervention and directions.
4. Allegations and discrepancies in show cause notices.
5. Request for cross-examination of witnesses.
6. Prayer for remand back to adjudicating authority.
7. Justification for remand after 12 years.
8. Directions for further proceedings.

Analysis:
1. The case involved a rectification application filed by the appellants before the Tribunal due to a mistake crept in the order dated 07/03/2015, leading to a difference of opinion between the members. The Third Member was involved in resolving this difference, while a rectification application was rejected on 11/09/2015 during the ongoing third member reference.

2. The dismissal of the ROM application prompted the appellants to approach the High Court of Bombay in Writ Petition No.2938 of 2015. The High Court found that the Tribunal's handling of the matter was not in accordance with the law, leading to the setting aside of the final order rejecting the difference and a direction for rehearing the matter by the Tribunal.

3. The High Court emphasized the need for specific reference of the difference of opinion and questions arising from it to the Third Member to ensure effective adjudication. The court highlighted the importance of certainty and finality in litigation to prevent chances of rehearing before the same court.

4. The allegations in the show cause notices from 1987-2003 included large-scale manipulation of records, availing credit by falsification, fabrication of documents, and involvement in fraudulent transactions. The appellant was accused of using fraudulent means to avail credit against excise duties and manipulating records to create fictitious transactions.

5. The appellant's contention included the lack of proof for discrepancies in the show cause notices, the denial of cross-examination of witnesses, and the adjudication authority's failure to address the appellant's submissions, causing prejudice to their interests.

6. The appellant requested a remand back to the adjudicating authority to re-adjudicate the matter considering all evidence and submissions. The prolonged duration of the case, pending for over 12 years, raised questions about the necessity of remand and the evaluation of unexamined evidence.

7. The Tribunal directed the appellant to provide details on the reasons for remand, unexamined evidence, submissions not considered, and the intended witnesses for cross-examination. The learned AR was instructed to reply, and the matter was scheduled for further proceedings without adjournment.

8. The comprehensive analysis of the case, including the legal interventions, allegations, appellant's contentions, and the direction for further proceedings, highlighted the complexity and significance of the matter before the Tribunal.

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