9911796707
TMI Blog2018 (7) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... could have done was to limit the findings on remand while retaining Revenue’s appeal on the file. This Court notices that CESTAT has been repeatedly passing remand orders virtually abdicating its responsibility as an Appellate Court. This trend is unhealthy given that it is the final Court of fact and is required to adjudicate both on the issues of fact and law, especially in matters such as the present one i.e. where the appeal before it was by way of the first appeal. This Court hereby sets aside the impugned order - The Tribunal is hereby directed to render specific findings on the issue after taking into account the submissions of the parties and calling for a limited remand findings on the issue of genuineness of the document alone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant contended that it had entered into an agreement dated 30.06.2006 with JIL and that the allegation with respect to its liability on account of a Memorandum of Understanding dated 20.04.2006 was not correct. The Commissioner accepted the assessee s contentions and dropped the demand discharging the show cause notice. 6. The relevant part of the order reflecting this aspect is as follows:- 32. Now, the noticee has submitted the legal agreement dt : 30-06-2006 duly signed by them as well as by M/s Jefferies with their reply to the show cause notice and has also produced the same for my perusal at the time of personal hearing. I find in the fact and circumstances of the present case the very first issue before me is whether the agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to act as the exclusive agent of the company and to use its commercially reasonable efforts to identify and introduce potential purchasers to the company in connection with the purchase of securities. 35 to 43 xxx xxx xxx 44. Further I find the ibid letter of engagement dated 20-04-2006 was translated into a further legal agreement MOU between the parties vide subscription agreement dated 30-06-2006, duly signed, dated and delivered and is legally binding upon both the parties. 45. The subscription agreement dated 30-06-2006, inter alia, provides for the following clauses (a) Preamble/Details The issuer proposes, subject to the compliances all conditions set out herein. To issue US $ 4,00,00,000 3.5% co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and the so called agreement (letter of engagement) dated 20-04-2006 was not a binding agreement which is clearly evident from the following paras/language in the said letter dt : 20-04-2006. (A) The final terms and conditions governing the transactions shall be mutually agreed between the company and Jefferies. (B) The terms of the transaction will be governed by one or more definitive agreements. This agreement is not intended to constitute a binding agreement to consummate the transaction or to enter into any agreement in relation to the transaction nothing in this agreement shall give rise to any underwriting or purchase obligation on the part of Jefferies in relation to the transaction. Similarly, nothing in this agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t MOU between the said parties dated 20.04.2006. It is pertinent to take note of the relevant fact that the transaction between the parties were initiated only through letter agreement dated 20.04.2006 and it is relevant as to the purpose, the motive and the intention behind the transaction to be carried out between the parties. Also, it is not disputed that only the letter agreement dated 20-04-2006 was translated into a further agreement MOU between the parties vide subscription agreement dated 30-06-2006. The adjudicating authority further failed to consider the essence and substance of the said further agreement dated 30.06.2006 that the essential purpose remained the same, i.e. to issue US $ 40 Millions 3.5% convertible bonds due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice recipient. It is the allegation that in the memorandum of understanding, the scope has been enhanced and the new document has been given at the time of adjudication. The contention of the department is that both the agreements has different contents. When it is so, then we set aside the impugned order and remand the matter to the original authority to verify the genuineness of the agreement and decided the issue denovo but by providing an opportunity of hearing to the respondent. Fresh evidence, if need be, may be admitted as per law. 9. Before this Court, the appellant contended that given the nature of findings by the Commissioner and the limited nature of the appeal by the Revenue which did not appear to indicate any disput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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