Dilip B. Bhosale, J.This Central Excise Appeal, filed by the Union of India, is against the order dated 4th May 2005 passed in Appeal Nos. E/876-877/2003, E/271/2004 by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bangalore (for short CESTAT) [2005 (192) E.L.T. 698 (Tri.-Bang.)]. The CESTAT did not consider merits of the case and disposed it of on technical grounds. The relevant observations in the concluding paragraph of the order of the CESTAT read thus:

We have heard the rival contentions. The CEGAT in its Final Order dated 12-2-2002 remanded the case to the Original authority on the ground that the order suffers from denial of principles of Natural Justice. There was a specific direction to supply the documents relied upon by the Department in the show cause notice. However, on going through the de novo order, we find that the directions of CEGAT have not been complied with, presumably due to the fact that the said documents have been lost by the Department. Under these circumstances, we cannot accept the Adjudicating authoritys observations that these documents are not relied upon. Once the show cause notice mentions that certain documents are relied on, the Department should take utmost care to preserve them and furnish copy of the documents to the party. Non-furnishing of relied on documents is clearly a violation of denial of principles of Natural Justice. The de novo order also suffers from the vice of denial of principles of Natural Justice as the original order. Under these circumstances, without going into the merits of the case, we are compelled to set aside the impugned order. In view of these findings, the appeal of the Revenue against the impugned order on the ground that no separate penalty under Rule 173Q has been imposed by the Adjudicating authority becomes in-fructuous. Hence, we allow the partys appeals and reject the Revenues appeal. These three appeals are disposed of in the above terms.

2. We have heard the learned counsel for the parties.

3. Learned counsel appearing for the appellant at the outset submitted that the CESTAT ought to have examined the effect of non-supply of certain documents on merits of the case. In other words, he submitted that the documents which were not furnished to the respondent-assessee did not have any effect on merits of the case, which the CESTAT ought to have considered and examined while dealing with the appeal.

4. On the other hand Mr. M.S. Nagaraja, learned counsel appearing for the respondent-assessee submitted that the documents which were referred to and relied upon by the Adjudicating authority in the show cause notice were not only not furnished to the respondent, but they were having bearing on merits of the case. He submitted that in the absence of those documents respondent-assessee could not and did not contest the matter and defend himself effectively. He further submitted that the documents, which were not furnished despite, the direction issued vide order dated 12-2-2002, have been relied upon by the Adjudicating Authority for passing the order confirming the demand and imposing penalty.

5. Since the CESTAT did not go into merits of the case and set aside the order of the Commissioner of Central Excise, Bangalore, without examining the effect of non-supply of the documents or without examining whether the said documents have any effect on merits of the case. When we so expressed, in the course of hearing of the appeal, learned counsel for the parties have fairly agreed for the following order:

(a) The order dated 4th May, 2005 passed by the CESTAT impugned in the present appeal is set aside and the Appeal Nos. E/876, 877/2003 and E/271/2004 are restored to file.

(b) The CESTAT shall consider the appeals on merits in accordance with law as expeditiously as possible, preferably within a period of six months from the date of receipt of this order.

(c) The CESTAT while considering the merits of the case shall examine the effect of non-supply of the documents relied upon by the Department in the show cause notice. The CESTAT shall also consider whether those documents have any bearing on the outcome of the case.

It is made clear that we are not making any observations on merits of the case and the CESTAT shall consider the case on merits in accordance with law within the stipulated time.

It is needless to mention that the Tribunal shall grant an opportunity of being heard to both sides before passing the final order.