Judgment:
Per M. Veeraiyan:
This is an appeal against the order of the Commissioner (Appeals) No. 20/CE/MRT II/2008 dated 28.1.08. The original authority denied the Cenvat credit amounting to Rs.4,43,053/- mainly on the ground that the documents were not produced before the adjudicating authority for verification. He also imposed penalty of Rs.30,000/- on the appellant. Commissioner (Appeals) has upheld the order of the original authority.
2. Learned Advocate for the appellant submits that no specific documents were sought for by the department while issuing show cause notice. However, she fairly concedes that the documents in the form of invoices which are sought to be introduced in support of their defence running to more than 200 pages could have been produced before the original authority so that dispute could have been possibly resolved at his level. She seeks an opportunity to produce this evidence before the original authority and therefore, seeks remand of the proceedings.
3. Learned SDR, in the facts and circumstances of the case, has no objection to the same proposal.
4. I have carefully considered the submissions from both sides. The appellants were claiming Cenvat credit which was sought to be denied primarily due to non-production of documents. The appellants should have produced these documents in the first place before the original authority. However, for this failure they could not be penalised with the demand without considering the defence materials now submitted. Though it is true that Tribunal is the final fact finding authority, it is not expected that the Tribunal verify each of the invoices and decide the admissibility or otherwise of the credit availed by the appellant. The final fact finding authority should not be made the first fact finding authority. Under these circumstances, I deem it appropriate to give another opportunity to the appellant and accordingly, set aside the orders of authorities below and remand the matter to the original authority for fresh consideration. The appellants are directed to produce the documents they want to rely upon within one month from today before the original authority. The original authority shall decide the matter afresh after granting reasonable opportunity of hearing. All issues are kept open.
5. The appeal is allowed by way of remand.