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TMI Blog2007 (6) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; (b) On the basis of intimation received from the income tax department to the central excise department and after further investigation by the Central Excise Department, a show cause notice was issued proposing demand of duty and by an order-in-original dated 25-11-1991 passed by the Commissioner, duty amounting to Rs. 7,36,676/- was demanded from the appellant firm and penalties were imposed on the firm and other connected person. (c) The matter came before the Tribunal and it was inter alia pleaded that there was denial of principle of natural justice as only an illegible photocopy of a diary seized from the Chennai based commission agent of the appellant, M/s. Swaran Jaura , which was an important relied upon document was given to them and request for cross-examination of Shri Swaran Jaura author of the diary was not granted. (d) The Tribunal vide its order dated 27-4-1992 remanded the matter for de novo consideration with certain specific directions. (e) The Commissioner vide his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In fact no time was devoted as could be borne out from record and from skin deep submission such remand order was passed. The CEGAT's order had become as if a boon and armour to the assessee. Then they started demanding original copy of diary and requested for cross-examination of the M/ s. Swaran Jaura of Madras (now Chennai). The order of the CEGAT somehow brought the department at a receiving end. However, for strict adherence to CEGAT's order and to observe principles of natural justice in its right perspective, the department had made several correspondence with income-tax authorities both at Ahmedabad and Madras, for submission of original copy of diary and also issued several summons to Shri Swaran Jaura, for making his presence for cross-examination as desired by the assessee and okeyed by the Hon'ble Tribunal. However, the efforts did not yield in any meaningful conclusion so far. Unfortunately, on completion of investigation, Income Tax Department had handed over the diary of Shri Ashwani Kumar Jaura of M/s. Swaran Jaura, who by that time was well aware of its importance as documentary evidence and hence had destroyed that diary. In reply to summons is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, on the contrary it was accepted by the assessee. The photocopy of diary was also made available to the assessee for inspection. If they found it as illegible, they should have raised such objection at any time during the course of investigation. If they find that photocopy supplied to them was illegible they have also got a remedy to inspect the same by personally visiting the Preventive section of the department or they should have made necessary arrangement to take legible copy of the same by themselves. Moreover, the persons whose statements were recorded had not even made any retraction of submissions made by them, within the reasonable period of time. Throughout the proceedings of the case, they consistently asked for legible copy and original copy, when they were sure that department would never be able to produce the same. Moreover, they had never made any attempt to defend their case with documentary evidence on other charges made in the show cause notice, which actually formed the core and a major quantum of evasion was based on that. I find that the assessee was in fact not serious or sincere in their approach to resolve the case and only had an intention to linger t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce that the order of the Tribunal has been passed in April, 1992 and it is not convincing that Department has acted with a sense of urgency to get back the original document from the Income Tax authorities for the purpose of completing de novo adjudication proceedings. At any rate, the Commissioner has not chosen to bring to the notice of the Tribunal the developments and seek appropriate modifications terms of the order from the Tribunal. 10.4 The Commissioner has not made available Shri Swaran Jaura for cross-examination. His conclusion that "I firmly believe that cross-examination will not serve any purpose so as to alter the course of case, when all the other evidences clearly establish evasion of duty" will amount to sitting in judgment over the decision of the Tribunal which directed such cross-examination. If he was deciding the need for cross-examination in the absence of specific direction was by the Tribunal, he was entitled to his view. Tribunal's specific direction permitting cross-examination should not have been brushed aside. This not only amounts to failure to comply with the terms of the remand order but also it is an act of judicial indiscipline. 11. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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