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TMI Blog1989 (8) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of various persons recorded during the enquiry and relied upon in the show cause notice as detailed out in Annexure B to the show cause notice be summoned from the appellants as the copies of all these statements were supplied to them as Annexure B to the show cause notice and must be in their possession. He further submitted that these documents were relied upon by the Adjudicating Authority in his impugned order and these are material statements/documents for the purpose of deciding the controversy raised by the learned Counsel for the appellants. In a nutshell his submission was that the appellants be directed to produce the said statements to secure the ends of justice either under Rule 41 or 23 of the CEGAT (Procedure) Rules, 1982. To lend support to his submissions he cited the following cases - (i) Metal Extruders (I) Pvt. Ltd., Bombay v. Collector of Central Excise, 1985 (19) E.L.T. 198 (Tribunal). (ii) Commissioner of Income Tax v. Steel Cast Corporation, (1977) 107 ITR 683. 2. Opposing the request Shri A.K. Jain, learned Counsel for the appellants submitted that this Tribunal has no power to direct the appellants compelling them to produce the said documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962 is not made applicable to the Appellate Tribunal as would appear from Section 35D of the Central Excises and Salt Act, appears to be attractive at the first blush but a little probe in the matter would reveal that it has no force. 4. For the proper appreciation of the controversy it would be advantageous to trace the legislative provisions of both the Acts. Customs Act, 1962 was amended by Finance Act 44 of 1980, inter-alia, making provisions for the constitution of the Appellate Tribunal . Section 2(1-B) of the Customs Act defines Appellate Tribunal means the Customs, Excise and Gold (Control) Appellate Tribunal constituted under Section 129. This Section 129 of the Act provides that the Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Gold (Control) Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act. Section 129A of the Act makes provisions for appeals to the Appellate Tribunal. Section 129B of the Act, inter-alia, provides that the Appellate Tribunal may, after hearing the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks of account and other documents; and (d) issuing commissions. 7. Thus in our considered opinion sub-section (7) is an integral part of sub-section (6) and should be read as such while reading sub-section (6) for, powers relating to discovery and inspection; enforcing the attendance of any person and examining him on oath, compelling the production of documents and issuing commissions are the irreducible minimum which the Tribunal acting as a quasi-judicial authority is to possess when trying a suit which for our purposes includes appeals as the words trying a suit meaning thereby trial has been used in the wider sense, meaning thereby the entire proceedings from the time when the adjudication proceedings travel into the domain of this Tribunal as an appeal upto the pronouncement of the final order as held by the Hon ble Supreme Court in the case of Harish Chandra v. Triloki Singh, AIR 1957 SC 444 wherein while dealing with the meaning of words trial of Election Petition under Chapter-III of the Representation of the People Act, 1951 their Lordships held that the word trial has been used in the wider sense as meaning the entire proceedings before the Tribunal from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers as are vested in a Court under the Code of Civil Procedure, 1908, inter-alia, to compel the production of documents etc., when trying a suit was not made applicable in Section 35D of the Central Excises and Salt Act, 1944 but this omission in our considered opinion, in the context of the provisions of Section 129C of the Customs Act and Section 35D of the Central Excises Salt Act is of no consequence. In the first place there is not the slightest indication in the Finance Act of 1980 or in the Notes on Clauses that any such drastic curtailment of powers such as discovery and inspection; enforcing the attendance of any person and examining him on oath; compelling the production of books of account and other documents; and issuing commissions given to the Appellate Tribunal in the discharge of its functions under sub-section (7) of Section 129C of the Customs Act was contemplated at that time. The Statement of Objects and Reasons for making the provisions of the Appellate Tribunal in the Customs Act, Central Excises Salt Act and the Gold (Control) Act was with respect to certain recommendations including the abolition of the jurisdiction of the Central Government and hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters arising out of the exercise of its powers or of the discharge of its functions. The said sub-section (6) of Section 129C of the Customs Act, 1962 reads as follows: (6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings. 13. The said sub-section (6) of Section 129C of the Customs Act (which has been made applicable to the Central Excises and Salt Act, 1944 by virtue of Section 35D as stated above) is somewhat similar to Section 122 of the Code of Civil Procedure, 1908 which empowers certain High Courts to make rules regulating their own procedure and the procedure of the Civil Courts. The said Section 122, C.P.C. reads as follows :- 122. Power of Certain High Courts to make rules :- High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with approval in the case of Rajendra Kumari v. Ram Adhar, (1976) 1 SCR 255 while dealing with the provisions of Section 90(2) and Section 92 of the Representation of the People Act, 1951, as amended by Act 47 of 1966. The said observations runs thus :- 18.(3) It is then argued that S. 92 confers powers on the Tribunal in respect of certain matters, while S. 90(2) applies the Civil Procedure Code in respect of matters relating to procedure, that there is a distinction between power and procedure, and that the granting of amendment being a power and not a matter of procedure, it can be claimed only under Section 92 and not under S. 90(2). We do not see any antithesis between procedure in S. 90(2) and power under S. 92. When the respondent applied to the Tribunal for amendment, he took a procedural step, and that, he was clearly entitled to do under S. 90(2). The question of power arises only with reference to the order to be passed on the petition by the Tribunal. Is it to be held that the presentation of a petition is competent, but the passing of any order thereon is not? We are of opinion that there is no substance in this contention either." 16. Similarly, in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order so that hearing of the appeal may proceed. If the appellants fail to produce the said statements as ordered by us the law will take its own course. 20. Before we part with the controversy it may also be stated that the appellants have raised an unnecessary controversy and we have thought it proper to decide it to settle the law. For, the instant case is not a case of compelling the appellants to produce the documents. It is a case where learned JDR requesting that since the original record is not available with the department, the documents relied upon and mentioned in Annexure B to Show Cause Notice may be produced by the appellants as the original records are not summoned by the Tribunal as per practice and the appellants are supposed to file the paper book including all the documents forming the part of the original proceedings. In these circumstances in our considered opinion the question of compelling the appellants to produce the documents strictly does not arise as envisaged under Order XI, Rule 14 read with Rule 12 of the Code of Civil Procedure, 1908 which provides for discovery and production of documents. In other words it is a case where the learned JDR is mak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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