Custom, Excise & Service Tax Tribunal
N. Ranga Rao & Sons vs Commissioner Of Central Excise, ... on 6 May, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order . 20712-20713 / 2014 Application(s) Involved: E/Additional Evidence/26770/2013, E/Additional Evidence/26778/2013, in E/3140/2011-DB, E/131/2010-DB Appeal(s) Involved: E/3140/2011-DB, E/131/2010-DB [Arising out of order-in-original No. 01/CCE/2011 dated 15/09/2011 passed by Commissioner of Central Excise , MYSORE ] [Arising out of order-in-original No.08/CCE-2009 dated 30/11/2009 passed by Commissioner of Central Excise , MYSORE ] N. RANGA RAO & SONS 1553, M.G.RAOD, MYSORE-570004 Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax MYSORE NULL S1-S2...VINAYA MARGA, SIDDHARTHA NAGAR, MYSORE - 570011 KARNATAKA Respondent(s)
Appearance:
Mr. B.N.GURURAJ ADV 22/2,3RD MAIN ROAD, CHAMRAJPET, BANGALORE -560 018 For the Appellant N. JAGADISH, A.R. For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 06/05/2014 Date of Decision: 06/05/2014 Order Per : B.S.V.MURTHY In these miscellaneous applications appellants are seeking remand of the matter to the original adjudicating authority on. The remand is sought on the ground that this Tribunal vide Final Order No. 20275/2014 dated 25/02/2014, had remanded the matter for de novo adjudication with a direction to consider the appellants claim for correct determination of transaction value as per the CAS-4 standard and to consider the appellants request for CENVAT credit entitlement on the inputs used for preparation of agarbathi masala. In that case, the submission made to this effect had not been considered and the issue involved was same as the issue involved in this case.
2. The learned counsel fairly agrees that in the present two appeals wherein the appellants are making a request for remand of the matter, the above submissions have not been raised before the original adjudicating authority and therefore he has made these miscellaneous applications under Rule 10 and Rule 23 of the CESTAT Procedure Rules 1982.
3. The learned A.R. vehemently opposes the request for remand. He submits that the present appeals cannot be considered at par with the appeal which was considered by the Tribunal and remanded. This is because unlike the earlier case, in this case, no submissions were made regarding CAS-4 and CENVAT credit. He relies on the decision in the case of Kneader House Vs CCE Delhi [2013(290)ELT 249 Tri-Del)] to submit that additional evidence cannot be allowed. He also relies upon the decision in the case of United Machinery Works (P) Ltd. Vs CCE Coimbatore [1995(79)ELT 477 (Tri.).
4. In the case of Kneader House, the Tribunal refused to consider the submission in view of the fact that appellant had not given any justification for non-production of the documents before the adjudicating authority or even before the Commissioner (Appeals). In this case, the learned counsel submitted that they had not taken these grounds since the appellants were very confident that Agarbathi masala was not excisable and not marketable and they expected to succeed on this ground alone. Therefore, there was failure to submit alternative grounds and only when they failed, they realized that they should have made such alternative grounds. We find this explanation to be reasonable. As regards the decision in the case of United Machinery Works (P) Ltd., the learned A.R. relied upon paragraph-5 of the decision which is reproduced below for better appreciation.
5. We have examined the records of the case and? considered the submissions made on behalf of both sides. The appellants have filed an application for seeking permission for production of additional evidence in terms of Rule 23 of the CEGAT (Procedure) Rules, 1982. According to the appellants the documents which they seek to produce as additional evidence in support of their case were available during proceedings before the Collector but they could not use the said documentary evidence since they were not aware about the basis on which the Collector would be forming his opinion. It is seen that in regard to the filing of additional evidence at the appellate stage, the Tribunal in the case of Prakash Pipes & Industries Ltd. v. Collector of Customs reported in 1993 (68) E.L.T. 779 has observed that the general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in the appeal. Rule 23 of CEGAT (Procedure) Rules is an exception and that exception should be exercised sparely and judiciously. Supreme Court held in State of U.P. v. M.L. Srivastava that additional evidence should not be permitted to be produced to enable the party to fill up any lacuna, specially when the party could have produced such evidence before the lower authorities but failed to do so without sufficient cause. The same view was affirmed in the case of Jain Exports Pvt. Ltd. v. Union of India reported in 1993 (66) E.L.T. 537 (SC). Following the ratio of these decisions we do not find any reason to allow the application filed by the appellants for placing on record additional evidence. The application is accordingly rejected.
5. We find that in this case, it was not held that such submission of additional evidence should be totally disallowed. It was held that these should be treated as an exception and such exception should be exercised sparingly and judiciously. In this case, if we do not allow the submission of these additional evidences and remand the matter to the original adjudicating authority, it would result in a peculiar situation in the sense that if Commissioner, the original adjudicating authority upholds and accepts the value as per CAS-4 certificate and also allows the CENVAT credit, there may not be any appeal at all against that order and we would be having two orders on the same issue and for different periods, the same issue would have received different treatments. Where it cannot be avoided, we cannot help. In this case, the matter has already been remanded for the subsequent period and in our opinion, in the interest of justice and to ensure uniform treatment of the issues for all the different periods, it would be appropriate to remand the matter. It would also reduce the number of orders required to be passed. The learned counsel submitted that the personal hearing fixed had been postponed to 23/05/2014 at the request of the learned counsel, accepting the submission of the counsel that this Tribunal would accept his submission to remand the matter. He submitted that if the remand order is issued by dasti, the Commissioner will be able to consider all the issues for different periods together. We find this to be reasonable.
6. In view of the above observations, the miscellaneous applications are allowed and matters are remanded to the original adjudicating authority with a request to decide the matters afresh after giving reasonable opportunity to the appellants to present their case. It is made clear that all the issues are kept open as was done while remanding the earlier matter. The order may be issued by dasti as requested by the learned counsel.
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Pnr...
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