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TMI Blog2018 (12) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantial questions of law are answered against the Revenue and in favour of the assessee. - Civil Miscellaneous Appeal Nos.2799 & 2800 of 2018 And CMP.No.21320 of 2018 - - - Dated:- 30-11-2018 - Mr.Justice T.S. Sivagnanam And Mr.Justice N. Sathish Kumar For the Appellant : Mr.Rajnish Pathiyil, SSC For the Respondents : Mr.Raghavan Ramabadran COMMON JUDGMENT T.S.SIVAGNANAM, J. These appeals filed by the Revenue under Section 35G of the Central Excise Act, 1944 (hereinafter called the Act) are directed against the common final order in Final Order Nos.40339 and 40340/2018 dated 06.2.2018 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for brevity, the Tribunal). 2. The above appeals are filed raising the following substantial questions of law : i. Has not the Tribunal fallen in error in ignoring the settled positions of law with regard to admission of additional evidence in the appellate stage ? ii. Has not the Tribunal fallen in error in allowing the miscellaneous application in the absence of sufficient reason for not producing these documents at the stage of adjudication ? iii. Has not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Authority, was as to whether the veracity of the receipt of fly ash from outside sources to the extent claimed by the assessee was correct or not. 8. The assessee made their submissions, which were considered by the Adjudicating Authority and primarily, the Adjudicating Authority came to the conclusion that the assessee had not produced any documents to establish that they procured fly ash from other sources other than the quantity delivered to them as per the records of the Mettur Thermal Power Station (MTPS). 9. At this juncture, it may not be necessary for this Court to go into the other aspects of the matter. 10. Aggrieved by order passed by the Adjudicating Authority, the respondents herein filed appeals before the Tribunal. During the pendency of the appeals before the Tribunal, a miscellaneous application was filed by the assessee stating that they have documents to prove that they procured fly ash from open market during the periods 2003-04 and 2004-05. They also filed a paper book containing several documents and in addition to them, the assessee filed a Memorandum of Understanding (MOU) between the MTPS and four cement companies; a sample MOU between the MTPS a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be considered when there was no mention of documents at any point of time. 16. The learned Senior Standing Counsel for the Revenue has relied upon the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin [reported in 2012 (8) SCC 148] to support his contention that the Appellate Tribunal should not allow new evidence to be adduced in order to enable parties to raise a new point in the appeal and where a party, on whom the onus of proving a certain point lies, fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. It is further submitted by the learned Senior Standing Counsel for the Revenue that this exercise of discretion by the Tribunal should have been done judiciously and not as done in the impugned order. 17. Per contra, the learned counsel for the respondents has reiterated the submissions made before the Tribunal and has drawn the attention of this Court to paragraph 3.1 of the order of the Tribunal wherein the Tribunal recorded that most of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it to pass orders or for any sufficient cause or if the Adjudicating Authority or Appellate or Revisional Authority has decided the case without giving sufficient opportunity to a party to adduce evidence, the Tribunal may, for reasons to be recorded, allow such documents to be produced or witnesses to be examined or affidavit to be filed. Sub-Rule (2) empowers production of any documents may be done either before the Tribunal or before such Departmental Authority as the Tribunal may direct. Sub-Rule (3) mandates that when such a direction is issued by the Tribunal, the Authority shall comply with the direction. Sub- Rule (4) directs the Tribunal to exercise power on its own to call for any documents or summon any witness on points at issue if it considers it necessary to meet the ends of justice. 21. The learned Senior Standing Counsel for the Revenue submits that Rule 23 of the CESTAT Rules is akin to Order XLI Rule 27 of the Civil Procedure Code (CPC) and in the instant case, the assessee sought to produce additional evidence without any specific pleadings as to why they did not produce the same before the Adjudicating Authority. 22. We are not fully convinced with the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an error had occurred. Similarly, we find that in paragraphs 23.01, 23.02(i), 23.02(x), 23.02(xvii), 23.02(xxiii), 23.02(xxv) and 23.02(xxvi), there were references to the stand taken by the assessee. Therefore, in our considered view, the Tribunal was justified in remanding the matter to the Adjudicating Authority to consider the evidence, which may be produced by the assessee. 27. It goes without saying that if the Department doubts the authenticity of the documents, that aspect can also be gone into by the Adjudicating Authority, as there can be no bar in doing so. In our considered view, the Tribunal, which has decided the matter, is the best judge to take a decision as to which of the documents are required to enable it to pass orders. We find that there is no error in the exercise of such discretion. Furthermore, the assessee's case is that they were not given sufficient opportunity. 28. The learned Senior Standing Counsel for the Revenue has relied upon the decision of the Hon'ble Supreme Court in the case of Ibrahim Uddin. The said decision arose out of a civil litigation and the Court found that there were absolutely no pleadings and that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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