2002(2) ALL MR 27
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

P.S. PATANKAR AND A.S. AGUIAR, JJ.

Union Of India Vs. Mr. Churchill Alemao

Writ Petition No.236 of 2000.

6th October, 2001

Petitioner Counsel: Mr. M.I.SETHNA, Mr. JOSEPH VAZ
Respondent Counsel: Mr. M.S.SONAK , Mr. D.PANGAM

Civil P.C. (1908), O.41, R.27 - Customs, Excise and Gold (Control) Appellate Tribunal Procedure Rules (1982), R.23 - Production for additional evidence - Application for - Affidavit on a very important piece of evidence in a case sought to be filed to enable the Tribunal to arrive at a proper decision - Tribunal refusing to take the affidavit on record on ground that the filing of affidavits would lead to enlarging the scope of the proceedings which would result in unavoidable delay - Observation of Tribunal not proper - Tribunal directed to take the said affidavits on record and also to permit cross-examination of the deponents.

Perusal of Rule 23 of CEGAT Procedure Rules indicates that the parties to the appeal may be permitted by the Tribunal to produce additional evidence, either oral or documentary, if the Tribunal is of the opinion that the documents should be produced or any witness should be examined or any affidavit should be filed to enable it to pass orders or for any sufficient cause. In the present case in the impugned order, the Tribunal has refused to take the affidavits of the Assistant Collector on record:- "as the same is not required by us in making our opinion or passing appropriate orders" and has also refused to take the affidavit of Shri Costao Fernandes, as in their opinion, where arguments were made orally by one side, they also may be rebutted orally by the other side and that it was not necessary to file affidavit to rebut any oral argument made in the course of arguments by one side. Furthermore, the Tribunal has held that the affidavits may lead to enlarging the scope of the proceedings which would result in unavoidable delay.

The reasons given by the Tribunal for refusing to take the affidavits on record to be wholly unacceptable. It is the case of the petitioner that the appellant had, across the Bar, for the first time, orally raised an issue namely that not even a single piece of gold was found in the entire proceeding, thereby indicating there was no gold smuggled and that the Tribunal was seriously considering the said oral plea in formulating its opinion. The Tribunal, in these circumstances ought to have, of its own accord, called upon the appellant to file such an affidavit in order to help it to fully decide the issue. In any case sufficient cause was made out by the petitioner for permitting it to produce the affidavits. The Tribunal has failed to notice this vital distinction between Rule 23 of the CEGAT Procedure Rules and Order 41, Rule 27 of C.P.C. Though broadly akin to Rule 23, Order 41, Rule 27 does not empower appellate court to permit adducing of additional evidence because there is sufficient cause made out. The failure of the Tribunal to take the Affidavits on record is not understood, more so in view of its observation that the oral arguments raised for the first time could have been rebutted by oral arguments on other side and also its observation that the filing of the affidavits would lead to enlarging the scope of the proceedings which would result in unavoidable delay. The affidavits would certainly be of assistance to the Tribunal in passing orders and in any event there was sufficient cause and reason for the petitioner to file the said affidavits in order to rebut the fresh submissions made by the appellant across the Bar. Rule 23 of CEGAT Procedure Rules clearly permits, if not mandates, such permission on the part of the appellate Tribunal. Even the judgment cited by the learned Advocate for the respondent, supporting the impugned order in the case of Rajkishore Panda and another Vs. Banitia Madhya Engrajee Bidyapitha and others state that the true test to be applied for dealing with an application for an additional evidence is whether the appeal Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence. In the present case the Court could not have pronounced judgment impartially without having taken on record the said affidavits which are rebuttal of a new case sought to be put up by the appellant for the first time across the Bar before the Tribunal. If the affidavits are not taken on record, the Tribunal will also be deprived of having oral evidence by way of cross-examination of the deponents which would be a very important piece of evidence to enable the Tribunal to arrive at a proper decision. The Tribunal has failed to exercise jurisdiction vested in it by refusing to take the affidavits on record.

In the circumstances, the CEGAT (Tribunal) was directed to take the said affidavits on record and also to permit the cross-examination of the said deponents.

AIR 1997 SC 3243

AIR 1990 Bom.98 - Referred. [Para 10,11]

Cases Cited:
State of U.P. Vs. Manbodhan Lal Srivastava, A.I.R.1957 S.C.912 [Para 5]
Jaipur Development Authority Vs. Kailashwati Devi, A.I.R.1997 S.C.3243 [Para 7]
Mrs. Indira Bhalchandra Gokhale(deceased by LRs) Vs. Union of India, A.I.R.1990 Bombay 98 [Para 8]
Rajkishore Panda Vs. Banitia Madhya Engrajee Bidyapitha, A.I.R.1987 Orissa 55 [Para 9]


JUDGMENT

AGUIAR, J. :- By consent, heard forthwith.

2. The petitioner, Union of India through the Collector of Customs & Central Excise, Panaji, Goa, prays for quashing and setting aside the Order dated 4.02.2000 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, refusing to take on record the two affidavits sought to be filed by the Customs Department. The petitioner had sought to file the two affidavits in the proceedings before the CEGAT as, during the course of hearing, learned counsel on behalf of the appellant/respondent herein, had advanced arguments across the Bar(even though it was not specifically pleaded as a ground of appeal) that the silence on the part of the Customs Officer about the existence of the gold biscuit was of vital importance. The Contessa car allegedly carrying smuggled gold was chased by the Customs Officer. The said Officer when faced by an irate mob, allegedly took out one gold biscuit from the dicky of the car and showed it to the public. The contention raised on behalf of the appellant before the Tribunal was that not even one gold biscuit was produced by the Department, though it was alleged that the Contessa car was transporting contraband gold. It was contended on behalf of the appellant that, the fact that the Department could not produce a single gold biscuit goes to show that, in fact, no gold was smuggled in the said car and the question raised is where was the single piece of gold biscuit? It is pointed out by the petitioner herein that since this point was being vigorously argued on behalf of the appellant and since it appeared that the Tribunal was inclined to consider the issue seriously even though it was not a specific ground in the appeal, the petitioner felt it necessary to file the affidavits of the concerned officers who were instrumental in chasing and stopping the car containing the contraband gold, with a view to explain the same. It is pointed out that this submission was never raised at an earlier stage nor in the cross-examination of the petitioner's witnesses nor at the adjudication stage. It is pointed out that it was necessary to file the affidavit of Shri Costao Fernandes as he was the sole eye witness to the incident and therefore he has sworn the affidavit dated 31.01.2000 explaining what happened to the gold biscuit which he had taken from the dicky and shown to the public after the car was stopped. As the car was stopped near the house of Mr. Churchill Alemao, ex-Chief Minister of Goa, many people rushed at him, and instead of helping to nab the smuggler etc. they were about to attack him and hence he threw back the gold biscuit, closed the dicky and ran away to save himself. It is further contended that Shri Costao Fernandes was the sole eye witness to the whole episode and he alone could clear the controversy by filing an affidavit which would be of great assistance to the Hon'ble Tribunal in deciding the matter. However, as stated earlier, the CEGAT by its impugned order refused to take the said affidavits on record.

3. The said order is impugned by the petitioner on the ground, inter alia, that the Order of the Tribunal is bad in law; that the Tribunal failed to exercise its jurisdiction conferred under Rule 23 of the CEGAT Procedure Rules; that the Tribunal failed to appreciate that the two affidavits of Customs Department especially that of Shri Costao Fernandes was the direct answer to the repeatedly raised points by the appellant across the Bar that no gold was ever found in the entire proceedings. Further, that the said affidavits were filed with the intention of assisting the Hon'ble Tribunal in appreciating the rival contentions of the parties and that the Tribunal failed to appreciate the settled law as laid down by the Apex Court that even at the appellate stage evidence can be produced in the interest of justice.

4. It is submitted on behalf of the petitioner that by virtue of Rule 23 of CEGAT Procedure Rules and in the interest of justice the Hon'ble Tribunal had ample powers to take the said affidavits on record; further that the objective in filing the two affidavits on behalf of the Customs Department in the said proceedings before the Tribunal was twofold, namely:- (i) That the Tribunal would have the benefit of evidence to the issues in hand on oath and that the deponent would also be available for cross-examination; and (ii) In case the matter is carried further in appeal the appellate forum would have the benefit of perusing the proceedings before the lower Court. Hence there was sufficient ground to grant it.

5. Learned Advocate on behalf of the respondent supports the Order of the Tribunal and contends that the petitioner cannot produce additional evidence at the stage of appeal as the same appeared to be only to fill up the lacunae and as a second thought and has placed reliance on the observations of the Hon'ble Supreme Court reported in State of U.P. Vs. Manbodhan Lal Srivastava (A.I.R.1957 S.C.912), wherein the Supreme Court held :-

"It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. ..."

6. The application for producing additional evidence was sought to be made under Rule 23 of the CEGAT Procedure Rules, 1982. The said Rule is as follows :-

"23. Production of additional evidence. - (1) The parties to the appeal shall not be entitled to produce any additional evidence, either oral or documentary, before the Tribunal, but if the Tribunal is of opinion that any documents should be produced or any witness should be examined or any affidavit should be filed to enable it to pass orders or for any sufficient cause, or if adjudicating authority or the appellate or revisional authority has decided the case without giving sufficient opportunity to any party to adduce evidence on the points specified by them or not specified by them, the Tribunal may, for reasons to be recorded, allow such documents to be produced or witnesses to be examined or affidavits to be filed or such evidence to be adduced.

(2) .........

(3) .........

(4) The Tribunal may, of its own motion, call for any documents or summon any witnesses on points at issue, if it considers necessary to meet the ends of justice."

7. The Supreme Court in the case of Jaipur Development Authority Vs. Kailashwati Devi reported in A.I.R.1997 S.C.3243 while considering Order 41, Rule 27 C.P.C. has observed as follows :-

"The intention of the sub-rule, in our view, is that a party who, for the reasons mentioned in the sub-clause, was unable to produce the evidence in the trial Court, should be enabled to produce the same in the appellate Court. The sub-rule mentions the conditions which must be complied with by the party producing the additional evidence, namely, that "notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him" in the trial Court. It is not one of the conditions that the party seeking to introduce "additional" evidence must have also been one who has led some evidence in the trial Court. Such a view amounts to introducing an additional condition not contemplated by the sub-rule. No distinction was intended by the sub-rule between a party who has produced some evidence in the trial Court and one who has adduced no evidence in the trial Court. All that is required is that the conditions mentioned in the body of the sub-rule must be proved to exist. It is not permissible to restrict the sub-clause (aa) for the benefit of only those who have adduced some evidence in the trial Court"

8. Learned Advocate on behalf of the respondent, referred to the case in Mrs. Indira Bhalchandra Gokhale (deceased by LRs) Vs. Union of India and another reported in A.I.R.1990 Bombay, 98 wherein it is observed as follows :-

"Under O.XLI, R.27, C.P.C. production of additional evidence whether oral or documentary is permitted only in certain contingencies. The first contingency is that the evidence sought to be produced in the appeal Court is that which the trial Court has refused to admit though it ought to have been admitted. Next, is the contingence where the evidence sought to be produced was not available to the party seeking to produce it notwithstanding the exercise of due diligence by him. The third contingency is the requirement of the Court of appeal for additional evidence so as to enable it to pronounce judgment. Neither of these contingencies is applicable to the present case. Defendants had ample opportunity when the case was before the trial Court to adduce the required evidence. Order XLI, R.27, C.P.C. is not to be taken recourse to merely because a party at the stage of appeal finds that some material which could have tilted the decision in its favour has not been produced but should have been."

9. Again reliance has been placed in the case of Rajkishore Panda and another Vs. Banitia Madhya Engrajee Bidyapitha and others reported in A.I.R.1987 Orissa 55, wherein the Court observed as follows :-

"It has been a well-settled principle of law that the discretion given to the appellate Court to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in O.41, R.27 of the Code. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied for dealing with an application for additional evidence is whether the appellate Court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced."

10. Perusal of Rule 23 of ,CEGAT Procedure Rules indicates that the parties to the appeal may be permitted by the Tribunal to produce additional evidence, either oral or documentary, if the Tribunal is of the opinion that the documents should be produced or any witness should be examined or any affidavit should be filed to enable it to pass orders or for any sufficient cause. In the present case in the impugned order, the Tribunal has refused to take the affidavits of the Assistant Collector on record:- "as the same is not required by us in making our opinion or passing appropriate orders" and has also refused to take the affidavit of Shri Costao Fernandes, as in their opinion, where arguments were made orally by one side, they also may be rebutted orally by the other side and that it was not necessary to file affidavit to rebut any oral argument made in the course of arguments by one side. Furthermore, the Tribunal has held that the affidavits may lead to enlarging the scope of the proceedings which would result in unavoidable delay.

11. We find the reasons given by the Tribunal for refusing to take the affidavits on record to be wholly unacceptable. It is the case of the petitioner that the appellant had, across the Bar, for the first time, orally raised an issue namely that not even a single piece of gold was found in the entire proceeding, thereby indicating there was no gold smuggled and that the Tribunal was seriously considering the said oral plea in formulating its opinion. The Tribunal, in these circumstances ought to have, of its own accord, called upon the appellant to file such an affidavit in order to help it to fully decide the issue. In any case we find that sufficient cause was made out by the petitioner for permitting it to produce the affidavits. The Tribunal has failed to notice this vital distinction between Rule 23 of the CEGAT Procedure Rules and Order 41, Rule 27 of C.P.C. Though broadly akin to Rule 23, Order 41, Rule 27 does not empower appellate court to permit adducing of additional evidence because there is sufficient cause made out. The failure of the Tribunal to take the Affidavits on record is not understood, more so in view of its observation that the oral arguments raised for the first time could have been rebutted by oral arguments on other side and also its observation that the filing of the affidavits would lead to enlarging the scope of the proceedings which would result in unavoidable delay. The affidavits would certainly be of assistance to the Tribunal in passing orders and in any event there was sufficient cause and reason for the petitioner to file the said affidavits in order to rebut the fresh submissions made by the appellant across the Bar. Rule 23 of CEGAT Procedure Rules clearly permits, if not mandates, such permission on the part of the appellate Tribunal. Even the judgment cited by the learned Advocate for the respondent, supporting the impugned order in the case of Rajkishore Panda and another Vs. Banitia Madhya Engrajee Bidyapitha and others (Supra) state that the true test to be applied for dealing with an application for an additional evidence is whether the appeal Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence. In the present case the Court could not have pronounced judgment impartially without having taken on record the said affidavits which are rebuttal of a new case sought to be put up by the appellant for the first time across the Bar before the Tribunal. If the affidavits are not taken on record, the Tribunal will also be deprived of having oral evidence by way of cross-examination of the deponents which would be a very important piece of evidence to enable the Tribunal to arrive at a proper decision. In our opinion, the Tribunal has failed to exercise jurisdiction vested in it by refusing to take the affidavits on record.

12. In the circumstances, we direct the CEGAT (Tribunal) to take the said affidavits on record and also to permit the cross-examination of the said deponents. Rule made absolute accordingly. Petition disposed of.

Order accordingly.