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TMI Blog2017 (11) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... hich sought to be relied upon. The documents though referred in the show cause notice were not given to the assessee by the Tribunal - The Tribunal has seriously committed an error in dealing with issue in view of the decision of this Court in case of P.G.O. Processors Private Limited vs. Commissioner, C.Ex., [2000 (1) TMI 59 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR] the documents which are required to be given to the assessee. The matter is remitted to the first authority. The petitioner will appear before the first authority on 06.11.2017 and authority will settle the matter within a period of four weeks - appeal allowed by way of remand. - D. B. Central/Excise Appeal No. 5 / 2014 - - - Dated:- 11-10-2017 - K. S. Jhaveri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as well as relied upon documents my be provided and 30 days time may be given from the date of supply of documents to submit the final reply. 4. However, specific contention was raised by the authority and the same was considered as documents which were referred in the notice, have been supplied to him but nothing on documents which sought to be relied upon, had been made by the authority, it has been observed as under:- I find that the taxable value on which service tax of ₹ 2,59,116/-from Oct. 1998 top Dec. 2001 was not paid by the assessee was worked out on the basis of the records resumed during the search hence the request of the assessee for copies of the relied upon documents is merely play to delay the adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recording of statement was not proper and he was not allowed the natural right of presence of his assistant/counsel etc. Tyhe copy of statement supplied bears information available and he has concealed nothing nor suppressed any information. It is right of the Department to question the assessee and so is the assessee having a right to get his answer properly recorded in the statement. The assessee should not be penalized for the privilege of getting his answere recorded properly. They requested that no penaly be imposed u/s 78 of Finance Act, 1994. 7. Learned counsel for respondent contended that the contention quoted above was taken after filing five replied on different dates and there is nothing but a technique to delay the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th dated 10.12.1998 in view of the allegations made in the show cause notice dated 15.01.1999. After receiving the first show cause notice dated 15.01.1999, during the pendency of earlier petition itself the petitioner had moved applications dated 18.02.1999, 25.02.1999, 08.03.1999, 12.03.1999, 27.03.1999, 03.04.1999 and 16.04.1999 for obtaining copies of the documents mentioned in Annex. 2 of the show cause notice dated 15.01.1999 as those documents were being relied upon by the department for taking the action proposed in the said show cause notice. The respondents did not allow the request of supply of copies but instead were prepared to give an opportunity to examine the records and obtain photo copies of the same. After some correspond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inspection would be a proper substitute for supply of copies. However, it only observes that the requirement is to furnish copies of the materials relied upon in the show cause notice and not on the merits and other records which is referred. There is a difference between relying upon documents and referring to the same. As already seen in the facts of this case, it cannot be disputed that the documents were relied on in the show cause notice and they were not just referred to. In Roshanlal Agarwal's case (supra), a learned Single Judge of this Court only directed the Department of the Union of India to make available to the assessee concerned copies of all documents and records relied upon by the department. Again in this case, the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner's letter dated 19.06.1999 addressed to the respondent No. 1 and proceed to adjudicate on the show cause notice only after supply of such copies. 12. In that view of the matter, we remit back the matter to the first authority. The petitioner will appear before the first authority on 06.11.2017 and authority will settle the matter within a period of four weeks and reply after the documents are supplied to the appellant. Reply will be filed if required within the period of three weeks from receipt of the documents. Therefore, issue No.1 is answered in favour of assessee. 13. We are not deciding the issue No.2 since we are remitting matter back to the first authority. The order of the Tribunal and Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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