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Commr.Of Cen.Exc.& Customs Surat vs Suresh Synthetics . on 27 January, 2016

Bench: Dipak Misra, N.V. Ramana

                                          IN THE SUPREME COURT OF INDIA

                                          CIVIL APPELLATE JURISDICTION

                                     CIVIL APPEAL NOS. 559-561 OF 2016
                              (Arising out of SLP (C) Nos.9268-9270 of 2012)


     Commissioner of                   Central Excise & Customs, Surat           … Appellant

                                                           VERSUS

     Suresh Synthetics & Ors.                                                    … Respondents



                                                       O R D E R

Leave granted.

In these appeals, by special leave, the legal acceptability of the common order dated 14.07.2010 passed by the High Court of Judicature for Gujarat at Ahmedabad disposing Tax Appeal Nos.1410-1412 of 2009 is called in question.

The High Court, as the impugned order would show, has agreed with the view taken by the Customs Excise and Service Tax Appellate Tribunal (for short, 'the tribunal') that there had been no clandestine removal of Polyester Texturised Yarn (PTY). The said conclusion has been arrived at on the ground that the revenue had not produced any evidence except the statement of the authorised officer of the assessee.

Digitally signed by Gulshan Kumar Arora Date: 2016.01.28

We have heard Mr. P.S. Patwalia, learned Additional Solicitor 17:01:38 IST Reason: General for the appellant and Mr. Jay Savla, learned counsel for the respondents.

On a perusal of the order passed by the tribunal, we find that the tribunal has been guided by the technical opinion of the chartered engineer submitted by the respondents who were the appellants before it. It has observed that the revenue has founded its case singularly on the basis of the statement of the authorised officer of the respondent. From the orders passed by the tribunal and the High Court, it is clear that the revenue has really built its case on the base of the statement made by the authorised officer and, accordingly, there has been intervention by the tribunal and the High Court. If the whole case is founded on the statement of the authorised officer of the respondent without verification of any other independent evidence, it would not merit acceptance.

Learned counsel for the respondents has submitted that it had produced the technical opinion of the chartered engineer which has been analysed by the High Court in extenso that there has been no differential quantity and hence, the question of clandestine removal does not arise.

It is noticeable that the High Court has accepted the technical report. It is submitted by Mr. Patwalia that the revenue had no occasion to contest the technical report. In our considered opinion, the revenue should have been afforded an opportunity to counter the technical report filed by the assessee by filing its technical report, for the whole controversy hinges upon the differential quantity and if there is any differential quantity,  3 the issue of removal would arise. Regard being had to the same, we set aside the order passed by the High Court and that of the tribunal and remit the mater to the tribunal to permit the Revenue to file a technical report. If the tribunal forms the view that there has to be further technical opinion, it may call for it or it may permit the parties to adduce further evidence to substantiate the plea. We may hasten to clarify that while dealing with the matter, the tribunal shall not take into consideration the statement of the authorised officer alone. If there will be any differential quantity on the analysis of the aforesaid aspects, then the said statement can be pressed into service. We may further add that the tribunal shall not insist upon pre-deposit of the dues for hearing of the appeal.

The appeals are allowed to the extent indicated above. There shall be no order as to costs.

................,J.

(Dipak Misra) ................,J.

(N.V. Ramana) New Delhi;

January 27, 2016.

ITEM NO.29                  COURT NO.4                SECTION III

                 S U P R E M E C O U R T O F      I N D I A
                         RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)      No(s).   9268-9270/2012

(Arising out of impugned final judgment and order dated 14/07/2010 in TA No. 1410/2009 14/07/2010 in TA No. 1411/2009 14/07/2010 in TA No. 1412/2009 passed by the High Court of Gujarat at Ahmedabad) COMMR.OF CEN.EXC.& CUSTOMS SURAT Petitioner(s) VERSUS SURESH SYNTHETICS & ORS. Respondent(s) Date : 27/01/2016 These petitions were called on for hearing today. CORAM : HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE N.V. RAMANA For Petitioner(s) Mr. P.S. Patwalia, ASG Ms. Nisha Bagchi, Adv.

Ms. Sunita Rani Singh, Adv.

Ms. Pooja Sharma, Adv.

                     Mr.   B. Krishna Prasad, AOR


For Respondent(s)    Mr. Jay Savla, AOR
                     Ms. Renuka Sahu, Adv.

UPON hearing the counsel the Court made the following O R D E R Leave granted.

The appeals are allowed to the extent indicated in the signed order. There shall be no order as to costs.

    (Gulshan Kumar Arora)                            (H.S. Parasher)
        Court Master                                   Court Master

                 (Signed order is placed on the file)