9911796707
TMI Blog2024 (4) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... , same cannot be accepted for reasons more than one. Firstly, the direction so issued by the tribunal on 06.09.2006 included a direction to the respondent to pass orders afresh which had resulted in respondent passing the orders on 21.11.2008 and 27.11.2008 respectively - Secondly, the High Court under the impugned order has itself observed that letter dated 20.01.2001 has not been relied upon by the revenue as an adverse document against the assessee while adjudicating the SCN s - Thirdly, it has been the consistent stand of the respondent-department that the said letter was in fact supplied to the assessee s representative and the same has been discussed in threadbare by the High Court under the impugned order. The High Court has opined and rightly so that the said letter dated 20.01.2001 (with enclosures) which is claimed by the appellant has not having been furnished is only a ruse for not replying to the show cause notices and it would in no way prejudice the appellant s claim, particularly in the background of reliance not having been placed by the respondent-authority for adjudicating the SCN s and in the absence of prejudice having been caused to the appellant no fault can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the same appeals came to be filed before CESTAT whereunder the tribunal vide order dated 06.09.2006 set aside the orders in original dated 28.02.2006, with a direction to the respondent to provide a copy of the letter dated 20.01.2001 referred to in the SCN's to the appellant and to decide the matter afresh. 5. In the teeth of direction issued by the tribunal, first respondent adjudicated the show cause notices afresh and by separate orders dated 21.11.2008 and 27.11.2008 raised the demand for payment of duty as indicated in the respective orders which resulted in both the orders being challenged by filing two appeals before CESTAT and vide order dated 05.05.2009 in order No. 550 and 551 of 2009 tribunal allowed the appeals and set aside the aforesaid orders of the respondent and yet again directed the respondent herein to pass fresh orders after providing the copy of the letter dated 20.01.2001. 6. Thereafter, the respondent herein filed an application under section 35C (2) of the Central Excise Act, 1944 (hereinafter referred to as 'CE Act' for short) for rectification of the order dated 05.05.2009 contending inter alia that letter dated 20.01.2001 which was ordered to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not to the tribunal. Hence, on these grounds, he seeks for setting aside the order of the High Court and allowing the appeals. 8. Shri V.C. Bharathi, learned counsel appearing for the respondent would support the impugned order and by reiterating the contentions urged in the counter affidavit and prays for dismissal of the appeal. He would also contend that the appellant has been successfully dodging the adjudication process on one pretext or the other and the so-called letter dated 20.01.2001 which had been directed by the CESTAT by Order dated 06.09.2006 to be furnished to the appellant is the letter of the appellant itself, which undisputedly was an explanation offered by the appellant with reference to alleged shortfall and excess storage of fabrics. He would also contend that mere reference to a document in the show cause notice itself need not be construed as if reliance having been placed by the authority on the said document so as to draw inference against the appellant, unless the show cause notice says so. He would further contend that until and unless appellant is able to establish prejudice on account of non-furnishing of the document and it would not be in a positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by him." 10. A perusal of the above direction issued by the tribunal would indicate that respondent was directed to supply the copy of the letter dated 20.01.2001 (and enclosures thereof) to the appellant and pass orders after affording reasonable opportunity of the personal hearing. 11. In the teeth of the above direction the respondent herein has passed an order afresh on 21.11.2008 and 27.11.2008 adjudicating the two show cause notices issued earlier. The fact remains that copy of the letter dated 20.01.2001 along with enclosures were not furnished pursuant to the aforesaid directions issued by the tribunal by the adjudicating authority. In fact, request for furnishing the same came to be reiterated by the appellant in the de novo proceedings adjudications of 2 SCN's and it has been observed by the adjudicating authority itself vide paragraph 19 of the order dated 21.11.2008 and paragraph 9 of the order dated 27.11.2008 respectively to the following effect: "19. At the time of personal hearing held on 21.04.2008 before the undersigned, Shri M. Ramasubramanian, Manager (Excise) appeared. He requested that MCL either be supplied with a copy of the document (letter dated 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings should be dropped." 12. The direction issued by the tribunal undisputedly has got merged with order dated 27.11.2008 it would be apt and appropriate to note at this juncture itself the contention raised by Shri Shekhar Naphade, learned Senior Counsel which is to the effect that by virtue of the direction issued by the tribunal under its order dated 06.09.2006 having attained finality, the authorities subordinate to the CESTAT having failed to comply with the directions so issued should have resulted in automatic allowing of the appeals by the High Court, though at first blush looks attractive, same cannot be accepted for reasons more than one. Firstly, the direction so issued by the tribunal on 06.09.2006 included a direction to the respondent to pass orders afresh which had resulted in respondent passing the orders on 21.11.2008 and 27.11.2008 respectively. Secondly, the High Court under the impugned order has itself observed that letter dated 20.01.2001 has not been relied upon by the revenue as an adverse document against the assessee while adjudicating the SCN's. The observation made by the High Court is to the following effect: "14. At this juncture, we would like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove show cause notices were issued and due to non-availability of Personnel who handled excise records during the relevant period, we are even unable to trace out certain documents/statements which were relied upon in the show cause notices and said to have been received by us. We therefore, request you to place once again provide us copies of the following documents and statements given by out personnel for our perusal and then prepare proper reply to the above show cause notice. Documents and Statements. 1. Chemical Examiner letters issued from File No.LCx.52/S/636/200-01, dated 7.3.2001 and 10.4.2001. 2. Statement dated 30.4.2001 given by Sri R. Murali Narayanan, Information Technology Manager. 3. A file containing letter dated 20.1.2001 along with the enclosures-64 sheets. 4. Statement dated 20.4.2001 given by Mr. R. Nallasivan, Sales Executive-5 sheets. We submit that it is not out intention to unnecessarily defer submission of reply to the show cause notice but we are handicapped in tracing out the relevant records, invoices, stock registers etc., including documents which were relied upon in the show cause notice, due to non-availability of concerned person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m prejudice and that they are prevented from giving an effective reply to the show cause notice. Certainly, a document which was either not within the knowledge of the assessee or not emanated from them, if relied on in the show cause notice, that too, by taking adverse inference against the assessee based on such document, then non-furnishing of such document would certainly result in causing prejudice to the assessee. On the other hand, if such document itself has emanated from the assessee and not from any third party or the Revenue and if the same was also not considered to draw any adverse inference against the assessee to form a prima facie opinion in the show cause notice, non-furnishing of such document to the assessee itself would not be construed as causing prejudice to the assessee. It is not beyond one's reasonable expectation that an assessee who sent a communication to the Revenue, would certainly retain a copy of the same in their file, especially when the proceedings are going on and not get terminated. If they did not retain a copy of such document or if it is lost from their hand, the assessee has to blame themselves. In this Scenario, the question of prejudice do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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