2004 (97) ECC 19 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

Shri P.G. Chacko, Member (J) and Shri Jeet Ram Kait, Member (T)

Interbright Appliance Pvt. Ltd.

Versus

Commissioner of Central Excise, Coimbatore

E/MISC/252/2003 IN Appeal No. E/192/2002/MAS

[Arising out of Order-in-Original No. 3/2002 (Commr) dt. 29.1.2002 passed by the Commissioner of Central Excise, Coimbatore]

Misc. Order No. 391/2004, dt. 25.6.2004, Certified on 9.7.2004

Appeal

Admissibility -- Documents belatedly filed -- Whether that authority has given due consideration & weightage to the documentary evidence gathered by the department can be ascertained only after scrutiny of the documents vis-a-vis what is discussed in the Commissioner's order. It is claimed that acceptance of these documents will effectively cater to a just decision in the case. Hence, appeal admitted -- Sec. 35B of CEA.

PRESENT :

Shri B.N. Gururaj, Adv. for the appellant.

Shri C. Mani, JDR for the respondent.

Cases Cited :

1. Bakul Cashew Co. v. UOI, 1984 (2) ECC 289 (Mad).......................................... [Para 2]

2. CC v. KLO Machine Tools Ltd. v. (86) ELT 375 (Tri).......................................... [Para 2]

3. Jain Exports Pvt. Ltd. v. UOI, 1993 (44) ECC 189 (SC)..................................... [Para 2]

4. Prakash Pipes & Industries Ltd. v. CC, 1998 (68) ELT 779 (Tri)......................... [Para 2]

5. State of UP v. Manbodhanlal Srivatsava, AIR 1957 SC 912............................... [Para 2]

6. Unique Beautycare Products v. CCE, 1988 (18) ECC 86 (T)............................... [Para 2]

Per : P.G. Chacko

This application, filed by the Respondent/Revenue, prays for accepting the documents filed therewith, to be considered as evidence in the appeal. The appeal filed by the assessee challenges an order of the Commissioner on numerous grounds, one of them being that the adverse findings of facts were recorded by the adjudicating authority without properly assessing the documentary evidence in the case. The present application has given a brief account of the evidentiary materials gathered by the department. It has listed out 98 documents mentioned in the Annexure thereto. It is stated that all these documents had figured in Annexure IV to the relevant Show-cause notice. Ld. DR submits that all these documents were relied upon in the Show-cause notice as indicated by Annexures I to III to the notice and that, explicitly or implicitly, the relevant contents of the documents were considered by the adjudicating authority. It is further pointed out that all these documents in original were inspected by the appellants as permitted by the Commissioner. It is the case of the applicant that, without these documents, it may not be possible for this Bench to assess the decision of the adjudicating authority. Whether that authority has given due consideration and weightage to the documentary evidence gathered by the department can be ascertained only after scrutiny of the documents vis-a-vis what is discussed in the Commissioner's order. It is claimed that acceptance of these documents will effectively cater to a just decision in the case.

2. This application is strongly opposed by the Counsel for the appellants, who reiterates the written objections dated 25.11.03. The Counsel submits that copies of these documents were not supplied at any stage of adjudication of the case. The Counsel's next objection is that none of these documents has been directly or indirectly relied upon by the Commissioner as the impugned order does not make specific mention of any of these documents. The third objection raised by the Counsel is that the documents have been produced too belatedly. The counsel relied on the following case law:

(1) Bakul Cashew Co. v. UOI, 1984 (2) ECC 289 (Mad) : 1984 (15) ELT 379 (Mad)

(2) Unique Beautycare Products Pvt. Ltd. v. CCE, 1988 (18) ECC 86 (T) : 1988 (37) ELT 369 (Tri)

(3) Jain Exports Pvt. Ltd. v. UOI, 1993 (44) ECC 189 (SC) : 1993 (66) ELT 537 (SC)

(4) Prakash Pipes & Industries Ltd. v. CC, 1998 (68) ELT 779 (Tri)

(5) CC v. KLO Machine Tools Ltd. v. (86) ELT 375 (Tri)

(6) State of UP v. Manbodhanlal Srivatsava, AIR 1957 SC 912

Yet an another plea made by the Counsel is that it may not be proper for the Respondent in the appeal to make an application of this kind, particularly at this late stage of the appellate proceedings.

3. We have given careful consideration to the submissions. We have also perused the annexures to the Show-cause-notice. The notice states the gist of allegations against the noticees, and Annexures I to III thereto give the factual details of the allegations. Annexure IV is a list of the documents relied upon in Annexures I to III. The documents which are now sought to be received by the Bench towards evidence in the appeal are all documents which figured in Annexure IV to the Show-cause-notice. Ld. Counsel has a grievance that copies of the documents were not supplied to his clients at any stage of adjudication. We, however, note that the records do not bear testimony to this submission of the Counsel. One of the documents we have seen today amongst the records is a copy of the letter dt. 17.6.2001 sent to the party by the Superintendent of Central Excise (Adjudication) in the office of the Commissioner of Central Excise. This letter shows that the party was permitted to peruse and take copies of the documents relied upon in the Show-cause notice. We have also perused the reply to the Show-cause notice. The reply does not contain any objection of the party that they had not received copies of the relied-upon documents. Even in the present memorandum of appeal, it has been tacitly conceded that it was after obtaining and perusing the relevant records that the appellants filed their reply on 9.11.01 to the Show-cause notice vide para 7 of the memorandum of appeal. We, therefore, overrule the Counsel's preliminary objection that copies of the relied-upon documents had not been supplied. The next question is whether the present application should be rejected on the alleged ground that the Commissioner has not directly or indirectly relied upon any of the documents in question. It may be true that the Commissioner's order does not make specific mention of these documents. What is to be ascertained is whether the Commissioner's assessment of evidence in this case is relatable to the contents of these documents. This must be our endeavour at the time of final disposal of the appeal. We are of the view that these documents will be useful for a fair and just decision in this case. This apart, these documents are bound to be handy for the appellants themselves inasmuch as they are keen to show that the impugned order has not directly or indirectly relied upon what is contained in these documents.

4. An objection was raised by Ld. Counsel that these documents were produced from the Respondent's side at a belated stage of the appeal and hence the application is liable to be rejected. We are unable to accept this plea, having seen the text of Rule 23 of the CESTAT (Procedure) Rules, 1982. It is this rule which has been invoked by the Respondent in the appeal. This Rule permits any of the parties to the appeal to apply to this Tribunal for taking additional evidence on record. We may further observe that mere receipt of these documents does not necessarily mean admission thereof as evidence in the case. Acceptance of evidence is a future exercise for the Bench.

5. We have also examined the case law cited by the Counsel. The citations are essentially to support the counsel's submission that an application of this kind filed belatedly is liable to be rejected. The appeal is of April 2002. It appears from the record of the past proceedings that the department had earlier filed an application for the same purpose but that was not found in order. The Respondent wanted to file a fresh application accompanied by the Commissioner's affidavit. The present application has been filed in these circumstances. The respondent has obtained leave of the Bench for filing this application. This being so, the objection that the application is belated is irrelevant now.

6. For the reasons already recorded, we allow this application and receive all the documents filed therewith to the file of this appeal. The appeal is posted for final hearing on 4.10.2004.

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