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Judgment
Revenue is in appeal against order -In- original dated 26/02/2010 which was issued in the wake of CESTAT (that time known as CEGAT) Final
Order No.348-351/2001 dated 13/09/2001. CESTAT in its final order dated 13/09/2001 set aside the primary adjudication order dated 30/03/2001 and
ordered Revenue to provide legible copies of the relied upon documents and return the non-relied upon documents to the parties. The adjudicating
authority in its impugned order has inter alia observed as under
v. I also observe from the report of the inspector of SIIB dated 23.11.2001 in which he has reported that he as per the order of the Hon'ble
CEGAT and on instruction of the Dy. Commissiioner of Customs SIIB, tried to locate the seized records of the party and after searching
many almirahs filled with old records, he could trace only few files from different almirahs and the party was asked to collect the same. He
further reported that part of the old non-relied files were handed over the party on 15.10.2001 and 9.11.2001. He also reorted that while
weeding out old records and shifting of junk items, lying dumped in the room of SIIB, remaining three files seized from the parties were also
recovered. Thus, all the seized files have been found. But, except Panchnama and statements none of the relied upon documents would be
seen anywhere. All the files so recovered contained only un-relied documents and except three which were already handed over to the
party, as per order of the Hon'ble CEGAT, under proper receipt. He also reported that many of the non-relied documents were also not
found in the files. He further reported that the investigating officer was also contacted by Dy. Commissioner (SIIB) to visit NCH on 22nd
November, 2001. The investigating officer after going through the files reported that although he investigated the case, but he did not know
the whereabouts of the relied upon documents and further added that the seized records had passed through may hands, but on no
occasion any handling over/taking over was done neither by him nor by any of the inspectors, then posted in the branch. The inspector SIIB
further reported that the original relied upon documents, in spite of thorough efforts could not be found in any alhirahs/racks.
xiv. Presently there are only 2 options available to me. One is to pass an order on the merit based on the photocopies of RUD's, some of
which are not legible which were already supplied to the notices, second is to wait for the original documents to surface and keep the case
pending unendingly. Adopting the first option will lead to violation of principles of natural justice as cited in the various judgments cited
above and will make the order infrcutuous ab initio. Waiting for the original documents to surface may not be giving any positive results as
the Import & General Commissionerate who were the custodian of the documents and who investigated the case have categorically stated
that the original documents are not available and hence the original of the RUD's cannot be given for inspection. The Chief Commissioners
office also reiterated the same. Keeping the file pending is not going to result in recovery of any of the original documents as already ten
years have lapsed from the detections of case and issue of which are pending for adjudication for more than 1 year. Thus, the CESTAT
direction while remanding the case back to the adjudicating cannot be fulfilled and hence, I have no other option but to pass an order not
on merits, but on the limited premise of violation of principles of natural justice
Indeed, when this case came up before CESTAT earlier on 12/08/2015 it passed the following order:
ORDER
Ld. A.R. for Revenue seeks time to file copies of RUDs and non relied upon documents which were considered in the order of the Chief
Commissioner constituting a Review Committee which is the basis for present appeals. It is contended by Revenue that impugned
adjudication order is flawed and a substantial portion of the demand should have been confirmed on the basis of RUDs and non-RUDs
which were furnished to Assessees contest receipt of these documents. Revenue shall prepare an executive summary of its appeals while
submitting further material for reliance in the appeals. Adjourned to 21.10.20105, in presence of both the parties. No fresh notice need be
issued.
When the case is taken up today we find that the revenue is not able to file copies of the RUDs which were considered in the order of the Chief
Commissioners constituting the review committee which is the basis for present appeals by Revenue. Thus the directions of CESTAT contained in its
orders dated 13.9.2001 and dated 12.8.2015 have not been complied with. The appellants have all along contested the receipt of the documents and
this fact is clearly and rightly recorded in the above quoted paragraphs of the impugned order. The adjudicating authority has clearly stated that the
CESTAT direction while remanding the case back to the adjudicating authority cannot be fulfilled and hence he has no other option but to pass an
order not on merits but on the limited premise of violation of the principles of natural Justice.
In the circumstances we do not find any ground to interfere with with the impugned order and accordingly Revenue's appeals are dismissed.