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TMI Blog2017 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... d also not granted cross examination and certain statements were not provided to the appellant, natural justice was violated by the adjudicating authority. Since the impugned order is suffering from non compliance of the natural justice, it is in the interest of justice that adjudicating authority should re-consider the matter a fresh after observing the principles of natural justice - appeal allowed by way of remand. - Appeal No.C/38/209 - Order No.M/94515/16/CB and A/94516/16/CB - Dated:- 13-12-2016 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri. R.B. Pardeshi, Advocate with Shri. A.M. Khare, Advocate and Shri. N.S. Patel, Advocate and Shri. Rakesh Singh, Advocate for the Appellants Shri. M.K. Sar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel, with Shri. A.M. Khare, Advocate, Shri. N.S. Patel, Advocate and Shri. Rakesh Singh, Advocates appeared on behalf of the Appellant. He submits that in Order-in-Original as well as in the earlier order of this Tribunal, report of the IIT dated 21-8-2006 was not considered which is very vital in this regard. The said IIT report was discarded on the assumption that the said report was not submitted to the department as per their record, accordingly the same was not considered. He submits that Hon'ble High in the observations, stated that the contention of the Revenue that the IIT report was not available is not correct. Moreover the Ld. Standing counsel appeared on behalf of the Revenue before the Hon'ble High Court admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rivals is the analysis of the goods. The adjudicating authority has relied upon some custom laboratory analysis report, however it appears that due to lack of clarity in the report matter was referred by the department to the IIT, which has given its reports. The adjudicating authority has discarded the IIT report on the basis that the authenticity of test report of IIT is doubtful. The copy of the IIT report obtained through RTI route and submitted before the adjudicating authority was not accepted. The Hon ble High Court also observed as under : 14. This Court admitted the appeal after a prima facie view and taken from the contents of the Memo of Appeal. At the hearing of this appeal, we indicated to both sides that calling and sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner/Deputy Commissioner (Customs), Group-ILA Jawaharlal Nehru Customs House, Sheva was informed by the Central Public Information Officer, Import Commissionerate and with reference to letter dated 21 St May, 2010 that the sample has been drawn and sent to IIT, Mumbai for test. However, it is requested to obtain and forward a copy of the test report to the same in compliance with the order in appeal. 18. We do not see why the Revenue sought such an information. 19. Apart from the fact that on 8 th June, 2010 the predecessor-in-title of the Appellants also sought this information and particularly with regard to the test report from IIT and was informed that no record of the Test Report of IIT is available in the adjudicating file, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with the matter on the available material. To our mind, when the report relied upon by the Revenue and the one produced by the Assessee contain different conclusions and observations and there is divergence of opinion between the experts in the field, then, all the more the prejudice is established and proved. 23. We are of the firm opinion that the Tribunal's order is, therefore, vitiated for want of consideration of a vital and valid ground of appeal referred by us above. That ground was squarely raised in the Memo and pressed during the oral arguments. The Appellants should have been given complete opportunity to press that ground on merits and non furnishing of such an opportunity, therefore, results in Tribunal's or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the rival contentions. We have highlighted them only to impress upon the Tribunal that it has not completed its job fully and failed to function properly and in accordance with law as a last fact finding Court. Now we expect it to perform the same expeditiously. As per the above order of the Hon'ble High Court, though directed this Tribunal to decided the matter as a fresh but on going through the documents and records, we find that since the Ld. Commissioner has not considered the IIT report and also not granted cross examination and certain statements were not provided to the appellant, natural justice was violated by the adjudicating authority. Since the impugned order is suffering from non compliance of the natural justic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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