Customs, Excise and Gold Tribunal - Delhi
Shri Kanwal Pal Singh And Ors. vs Collector Of Customs on 16 March, 1988
Equivalent citations: 1988(17)ECR779(TRI.-DELHI), 1988(35)ELT725(TRI-DEL)
ORDER Harish Chander, Member (J)
1. The present applications arise out of the captioned appeals. The applicants have made a prayer for raising the additional grounds of appeal as ground of appeal No. 18. Shri A.K. Jain, the learned advocate has pleaded that the applicants could not raise this ground of appeal before the lower authorities and in the memo of appeal filed by the appellants. This ground of appeal was not incorporated. He has pleaded that the applicants were prevented by sufficient cause for not raising the ground of appeal earlier and states that in case the applicants are not permitted to raise this ground of appeal at this stage the applicants shall suffer a irreparable loss. In support of the arguments he has referred to the judgment of Hon'ble Supreme Court in the case of Commissioner of Sales Tax v. Sarjoo Prasad Ram Kumar [1976 (37) STC 533] where the Hon'ble Supreme Court held that "unless there was some provision either in the Act or in the Rules framed which precluded the assessee from raising any objection as to jurisdiction, if the same was not raised before the assessing authority, the assessee could not be precluded from raising that objection 'at a later stage. An objection as to jurisdiction goes to the root of the case".
2. Mrs. Nisha Chaturvedi, the learned Senior Departmental Represen- tative who has appeared on behalf of the respondent very much objects to the admission of additional ground of appeal at this stage. She states that the applicants had raised this issue before the adjudicating authority and had also not incorporated the same in the memo of appeals filed before the Tribunal. She states that the application for raising the addi- tional grounds of appeal is not in proper form, as such the same should not be admitted. Shri A.K. Jain, the learned advocate in reply states that the applicants have come ail the way from Agra and the matter had been adjourned from time to time and it will amount to great incon- venience to the applicants. Shri Jain undertakes to file the affidavit of the four applicants tomorrow. Mrs. Nisha Chaturvedi, the learned Departmental Representative has got no objection for the decision of the present application for raising the additional ground of appeal and hearing of the appeals as the applicants have come from outstation.
3. After hearing both the sides and going through the facts and circumstances of the case we hold that new grounds of appeal can always be taken before the commencement of the proceedings. Specially legal, grounds can always be taken at any stage. We very respectfully follow the judgment of the Hoa'bie Supreme Court in the case of Commissioner of Sales Tax v. Sarjoo Prasad Ram Kumar reported in 1976 (37) STC 533. Hon'ble Andhra Pradesh High Court in the case of C.I.T. v. Gangappa Cables (116 ITR 778 AP) held that a fresh plea can always be taken before the Tribunal provided that jurisdiction to entertain new issues not raised by the appellant before the lower authorities, provided that the claim is backed by sufficient material on record. In the present matter before us the ground of appeal raised by the applicants is purely a legal ground and on the issue of jurisdiction it can always be raised at any stage. Accordingly we allow the request of the applicants and order that the additional ground of appeal proposed by the applicants as follows :-
"that the learned Additional Collector of Central Excise Kanpur is/was not the Additional Collector of Customs as appointed under Section 4 of the Customs Act, 1962 by notification. Therefore, the order-in-original No. 3-Addl./Collr./Cus./84, dated ' 29-9-1984 passed by the Additional Collector of Central Excise, Kanpur under the Customs Act, 1962 is without any jurisdiction and therefore the order is a nullity and is liable to be quashed."
should be read as the last ground of appeal in the grounds of appeal set out by the applicants in form No. CA-3.
Pronounced in the Open Court.