IMPORTANT POINT
Show cause notice – Assessee must show and establish that such non-furnishing of a particular document caused them prejudice and that they are prevented from giving an effective reply to show cause notice.

JUDGMENT :

ARAVIND KUMAR, J.

1. Leave granted.

2. Being aggrieved by the order dated 18.07.2018 passed by the High Court, Madras whereunder the order of the Customs, Excise and Service Tax Appellate Tribunal (hereafter referred to as ‘CESTAT’) dated 05.05.2009 came to be set aside and remanded the matter back to the tribunal for disposal of the appeals came to be passed by directing the appeals be heard on merits these appeals have been filed.

3. Short facts shorn of explicit details are as under:

4. The appellant is engaged in the manufacture of cotton yarn, polyester yarn etc. and based on an information received that it had indulged in clearance of certain goods manufactured by it without payment of duty resulted in the preventive unit of the respondent visiting the unit and conducting stock challenge of the finished fabrics stocked in the bonded warehouse. Based on a prima facie and reasonable belief that excess quantities of stock were stored for illicit removal, the department seized the excess stock under mahazar and it was provisionally released on execution of general bond; it also resulted in the issuance of two show cause notices (for short SCN’s) dated 11.05.2001 and 02.11.2001 which resulted in two orders being passed on 28.02.2006 by the respondent herein. Being aggrieved by the same appeals came to be filed before CESTAT whereunder the tribunal vide order dated 06.09.2006 set aside the orders in original dated 28.02.2006, with a direction to the respondent to provide a copy of the letter dated 20.01.2001 referred to in the SCN’s to the appellant and to decide the matter afresh.

5. In the teeth of direction issued by the tribunal, first respondent adjudicated the show cause notices afresh and by separate orders dated 21.11.2008 and 27.11.2008 raised the demand for payment of duty as indicated in the respective orders which resulted in both the orders being challenged by filing two appeals before CESTAT and vide order dated 05.05.2009 in order No. 550 and 551 of 2009 tribunal allowed the appeals and set aside the aforesaid orders of the respondent and yet again directed the respondent herein to pass fresh orders after providing the copy of the letter dated 20.01.2001.

6. Thereafter, the respondent herein filed an application under section 35C (2) of the Central Excise Act, 1944 (hereinafter referred to as ‘CE Act’ for short) for rectification of the order dated 05.05.2009 contending inter alia that letter dated 20.01.2001 which was ordered to be furnished by the department was not available and sought permission to adjudicate the SCN’s afresh without supplying or taking into account the said communication dated 20.01.2001. The said application came to be dismissed as withdrawn with liberty to take appropriate steps vide order dated: 04.01.2010. In the light of the said liberty granted, the respondent herein filed two miscellaneous petitions before CESTAT for modification of the order No. 550 and 551 of 2009 dated 05.05.2009 resulting in modification of the order dated 05.05.2009 whereby the respondent was directed to adjudicate the show cause notices without relying upon the letter dated 20.01.2001. Being aggrieved by the same, the appellant herein filed two appeals before the High Court in CMA No. 469 and 470 of 2010 resulting in the order of the tribunal being set aside and remanding the matter back for hearing the appeal afresh. Hence, these appeals.

7. We have heard the arguments of Shri Shekhar Naphade, learned Senior Counsel appearing for the appellant and Shri V.C. Bharathi, learned Counsel appearing on behalf of Mr. N. Venkatraman, Additional Solicitor General, for respondent. It is the thrust of the arguments of Shri Shekhar Naphade, learned Senior Counsel that final order No. 838 to 840 of 2006 dated 06.09.2006 passed by the tribunal having attained finality whereunder the respondent was directed to furnish the copy of the letter dated 20.01.2001 and the annexures appended thereto and due to non-compliance there