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TaxTMI 
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2016 (4) TMI 766
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....s.Kachwala Misar ORDER P. C. 1. At the hearing of these Notices of Motion, we had indicated to the parties that the Court would dispose of Appeal itself for it involves a very short point. 2. This appeal was admitted by this Court on 22nd March,2010 on the following two substantial questions of law: "(a) Whether finding recorded by Hon'ble Tribunal in para 12 of the impugned order that Appellants already had a copy of the statements and the appellants were fully aware of the contents of the statements is perverse, particularly in the background of the finding recorded in para 5 of the impugned order that the statements were never given to the Appellant either along with show cause notice or at any time thereafter. (b) ....
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....deceased was resorting to undervaluation in the import, obtained an opinion of the Research Scientist attached to Institute of Chemical Technology, Mumbai. He conducted various tests and submitted his report. It is the claim of the Assessee that the Revenue had forwarded a sample from the imported consignment to Indian Institute of Technology, Powai, Mumbai. The representative samples were drawn and forwarded to the Chemical Examiner, and the investigation, then, resulted in the statement of the deceased being recorded. Though the consignment was cleared under a Bill of Entry dated 22nd March,2005, a notice to show cause was issued by the Deputy Commissioner of Customs attached to Special Investigation and Intelligent Branch dated 2nd June,....
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...., refers to retraction of predecessor-in-title of the statement made under Section 108 of the Customs Act by him. In paragraph (6) of its order, the retraction is also referred. Yet, the Tribunal finds that there is no necessity of supplying copy of such statement nor has it resulted in miscarriage of justice. That reasoning and by attributing the knowledge of the contents of the statement to the Appellant's predecessor-in-title that the first ground was rejected. 11. Then comes the next and more important ground based on which the Appellants submitted that if there was a report of IIT and which was indeed on file, then, at least that should have been made available. The Tribunal in paragraph 17 and after its detailed discussion on t....
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....urt admitted the appeal after a prima facie view and taken from the contents of the Memo of Appeal. At the hearing of this appeal, we indicated to both sides that calling and summoning the original records would take care of the whole issue and controversy. If the original records and from the file of the Tribunal as also the Adjudicating Authority are summoned, they would indicate whether the Appellants at all had supplied any copy of the report of IIT to the Adjudicating Authority. That is how the original records were called for by our earlier order and the parties through their Counsel were permitted to inspect them. The matter was placed before us for further hearing after the inspection of the records was completed. 15. After the r....
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....ion and particularly with regard to the test report from IIT and was informed that no record of the Test Report of IIT is available in the adjudicating file, it is evident that this report was in the same Commissionerate but with a different Section. 20. To our mind in such state of affairs, the Tribunal should have considered the request of the Appellant's predecessor to read this document in evidence and allow the Assessee to rely on it. There was no ground and sufficient for the Tribunal to deny this request. This would have obviated further proceedings including filing of appeal in this Court. We have seen that lot of correspondence has gone by on this point and between the parties. We are not concerned with the correctness of th....
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....ve been given complete opportunity to press that ground on merits and non furnishing of such an opportunity, therefore, results in Tribunal's order being ex-facie illegal. It is vitiated by an error apparent on the face of the record. 24. We proceed to quash and set aside the impugned order of the Tribunal. 25. We do not think that the matter should be, and in the given facts and circumstances, remanded and sent back to the Adjudicating Authority, rather restoration of the appeal to the file of the Tribunal and for consideration afresh on merits and in accordance with law would serve the interest of justice. We, therefore, quash and set aside the order of the Tribunal and restore the appeal of the Assessee to its file for fresh co....