Custom, Excise & Service Tax Tribunal
M/S. Gtc Industries & Others vs Cce, New Delhi, Chandigarh,Kanpur on 4 March, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COURT NO.II
E/Appeal No.153-154/88, E/5235,5236,5238 & 5209/92-Ex(Br)
M/s. GTC Industries & Others Appellant
Vs
CCE, New Delhi, Chandigarh,Kanpur Respondent
Coram : Honble Mr. D.N.PANDA, JUDICIAL MEMBER Honble Mr. RAKESH KUMAR, MEMBER TECHNICAL Appeared for the Appellant : Shri L.P.Asthana, Mrs. Nisha Bagchi, Shri S.K.Mongra, Ms. Sujata & Sh. Abhishek,Advs.
Appeared for the Respondent: Shri Mohan Parasaran,A.S.G Shri Gaurav Dhingra, Adv.
Date of Hearing: 4.3.09 Proceeding dated 04/03/09 This matter came before us first on 1.12.08. But for the difficulties expressed by both the sides that they were not in a position to trace their old record they sought adjournment to 22.12.08. When that came on 22.12.08, the matter was again adjourned to 8.1.09 at the request of Revenue since their Counsel had certain difficulties. But the matter did not reach to us on 8.1.09. Again on 2.2.09, the matter appeared before us. Both sides requested to adjourn the matter to 5.2.09 and took notice. We directed Registry to list the matter on the top of the list on that day in regular matter list. Again when the matter appeared on 5.2.09, after the matter proceeded for some time for hearing, both sides requested that they shall produce evidence and argue the matter in length on subsequent hearing date. Accordingly that was adjourned to 9.2.09. On 9.2.09, both sides were heard and the hearing proceeded with Appeal Case No.E/154/88-A which is relating to NETCO. Ld. Counsel read out the basis of the charge from order-in-original and argued. Further the matter was adjourned to 12.2.09. On 12.2.09, Ld. Counsel Shri Asthana appearing for Appellant placed the pleadings of Appellant that was submitted before the Ld. Adjudicating Authority and the matter proceeded for sometime. It was further adjourned to 16.2.09. On 16.2.09, after a good length of hearing both sides submitted that in view of paucity of time and plethora of evidence to be examined, both sides have filed an application before Honble Supreme Court for extension of time for disposal of remanded appeal. They also filed a copy of their application. Ld. Counsel for the Appellant placed issue No. I framed in order-in-original and argued on that issue. Revenue requested time to bring the evidence from Gauhati and also to seek attendance of officials from that Commissionerate to explain the case further. Accordingly, the matter was adjourned to 26.2.09.
2. On 26.2.09, Ld. Counsel Mrs. Nisha Bagchi argued at length on issue No.I referring to the evidence relied upon by Revenue to decide that issue. We have recorded the proceedings separately on that day which has formed an integral part of the order sheet.
3. The matter came up before us today i.e. on 04/03/2009. Ld. Counsel Mrs. Nisha Bagchi commenced her arguments submitting that the allegations made in the show cause notice was relying upon statement recorded under duress. She referred to page 131 of the appeal folder and 132 thereof. She has drawn our attention to page No.134, 135, 137, 138, 142, 144 of appeal folder and submitted that the Appellants were crying from very beginning that they were deprived of the process of natural justice and this was their preliminary objection all along. Along with that, allegation as to recording of statement under duress, coercion and threat was made for which the statement resulted out of that does not support the case of Revenue. Revenue objected to the allegation of duress, threaten and coercion and Ld. AGS submitted that authorities have authenticated the statements recorded fairly without such allegations being present.
4. She has drawn our attention to page 146 and submitted that Revenue required the Appellant to file affidavit in respect of statement of 15 persons appearing in that page. Cross examination was all along being prayed by the Appellant in respect of four persons appearing at page 141 of appeal folder. Statement was recorded by Revenue from those persons and used against the Appellant. Similarly, she submitted that the statement recorded from 10 retailers and that is also challenged on the ground that those witnesses were never in existence nor their evidence have creditability for no cross examination allowed. She refers to page 150 and 151/209 and 208 of the appeal folder. Drawing attention to page 153/206, she further submitted that denying cross examination, the proceeding has been vitiated. Drawing attention to page 159/2000, she further harped that cross examination is the only requirement of law to test creditability of the witness of Revenue.
5. She further submits that the unrelied upon documents were not at all returned by Revenue although they agreed to return the same through various correspondences. She submits that the Appellant made clear to the Revenue that when cross examination was paid a deaf ear, unrelied upon documents would serve the interest of justice if those are returned. Even though such specific prayer was made, no return of the relied upon documents were done by Revenue. But, Revenue merely extended time to reply to show cause notice without granting opportunity of cross examination and without returning the relied upon documents.
6. She drew our attention to page 162 to submit that the authorities preconceived that the witnesses meant for cross examination would merely depose what ever they have already stated in their recorded statement. She drew our attention to page 172 and submitted that the Appellant requested for review of the decision of Revenue as to their version that they shall not enter into further correspondence appearing at page 169. Referring to page 174 and 175, she submitted that the authorities denied review of their decision. She draws our attention to CWP No.2036/86 found from page 183 to submit that the question of violation of natural justice was challenged by writ petition before Honble High Court of Delhi alongwith the question of Jurisdiction. Against this, Ld. ASG Shri Mohan Parasaran for Revenue submits that the writ petition was dismissed as withdrawn.
7. Ld. Counsel for Appellant draws our attention to page 184 to say that the Appellant was repetitively insisting to return back un-relied upon documents to the Appellant. But Dept. did not allow such prayer. In the counter affidavit filed by Revenue in connection with CWP No.2036/86, she submitted that Revenue in their counter affidavit stated that appellants prayer/request for returning of un-relied upon documents has not been turned down.
8. Relying upon all the aforesaid materials, she emphasises that natural justice has all along been denied. To support her contention, she has drawn our attention to Ground No.(d) of appeal memo appearing at page 79/281 of the appeal folder where violation of natural justice was specifically pleaded before Tribunal. At this juncture, Ld. ASG submits that natural justice question does not arise at this stage when Honble Supreme Court has directed the Tribunal to decide on three issues i.e. (a) flow-back, (b) limitation and (c) determination of liability. Such contention of Revenue was repelled by the Appellants Counsel submitting that natural justice goes to the root of the matter.
9. Learned counsel for Appellant took us to page No. 83/276 to deal with the issue No.I framed by learned Adjudicating Authority which comprises of 3 such issues appearing at page 80/276 and 279 of the appeal folder. She submits that the question of natural justice is an essential ingredient to decide the issue of flow back. Any conclusion drawn violating principles of natural justice relying upon the documents gathered by Revenue against the Appellant, without being tested by cross examination shall result in denial of justice. Drawing our attention to page 91 to 104 of the compilation filed by the Appellant she submits that those are documents inadmissible in evidence when failed to establish their own credence without cross examination being allowed.
10. She invites attention to documents at page 102 to 104 of the compilation filed by the Appellant and submits that these three documents show similar version in the answers to questions No.5,6 and 10. We asked officers of revenue present today in the court to submit a reply on that. Shri Apalak Das, Ld. Asstt. Commissioner appearing today from Gauhati replies that he has not recorded the statements appearing at page 102 and 104. Ld. Counsel for the Appellant submits that in view of the defects appearing at page 91 to 104 and suffering from legal infirmity, in absence of counter signature of authorities as well as those documents not being tested by cross examination, those documents cannot be used against the Appellant. She draws our attention to page 64 of the compilation of the appellant and says that such document cannot be considered under law being inadmissible in evidence for defects. She takes us to page 81/278 to deal with 14 katcha slips recovered from Shri Vinod Kumar, that was considered by the Revenue in framing charge against appellant. Similarly she challenges pages 68 to 72 of compilation, which pertains to Vinod Kumar only submitting that those documents are inadmissible in evidence for no cross examination being allowed. Specifically she says that page 60 of the compilation does not per se establishes charge against the appellant in respect of Panama Virginia.
11. Although we have directed the Appellant to file English version of the documents not in English, nothing has come out today. Ld. Counsel for the Appellant submits that she shall place the English translation by tomorrow. We make it clear that if no English version comes before us tomorrow, those shall not be looked into by the Tribunal since the official language of the Tribunal is English.
12. The proceeding recorded today shall form an integral part of order sheet signed.
(Proceeding dictated and recorded in the open Court).
(D.N.Panda) Judicial Member (Rakesh Kumar) Member Technical km