Customs, Excise and Gold Tribunal - Delhi
Wiegand India (P) Ltd. vs Collector Of Central Excise on 10 April, 1995
Equivalent citations: 1995(78)ELT331(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. By this Miscellaneous application, the appellant is seeking permission to place certain documents in support of their additional grounds raised therein that designing and fabrication undertaken by them is not exigible and they had mistakenly offered for assessment to excise duty classifying the impugned goods under Chapter 84 of the Schedule. The appellant in their application has submitted that the ground urged by them is a legal and jurisdictional issue, the same is to be permitted to them to raise it.
Misc/1129/94 & 113/95-B1
2. These are counter and objections filed by the Collector of Central Excise, New Delhi to the above application of the appellant. By mistake, the Registry has numbered it. As it is not an application but only a counter to the application filed by the appellant for raising additional grounds and to file supporting evidence thereto, the contents are accepted as arguments and the miscellaneous applications are otherwise rejected.
3. We have heard Shri S.P. Mittal, the Learned Advocate for the appellant and Shri Somesh Arora, the Learned JDR for the Revenue.
4. The Learned Advocate amplifying the grounds urged in the application, submitted that the ground being a legal one, is required to be permitted to be raised, as the question raised goes to the root of the issue. In this context, the Learned Counsel has relied on the following rulings :
i. Kiran Singh & Other v. Chaman Paswan & Other (AIR 1954 SC 340) ii. Commissioner of Income Tax, Madras v. Mahalakshmi Textile Mills Ltd. - 1967 (66) ITR 710 iii. Commissioner of Income Tax, Mysore v. Sujirkar Tile Works (P) Ltd. - 1975 (99) ITR 482 iv. Shree Digvijay Cement v. Collector of C. Excise - 1986 (25) E.L.T. 994 v. Shri Vallabh Glass Works Ltd. and Ors. v. Union of India and Ors. - 1984 (16) E.L.T. 171 (SC)
5. The Learned JDR arguing for the Revenue pointed out that the appellants had voluntarily filed classification list and had been paying the duty by subjecting themselves to the licencing procedure. Therefore, they cannot be permitted to raise the additional grounds as it requires investigation of facts. It is not a purely legal ground and such cases are all in the nature of new grounds, which should not be permitted to be raised. In this context, the Learned JDR relied on the following rulings :
i. Jain Exports (P) Ltd. v. Collector of C. Excise -1993 (66) E.L.T. 537 (SC) ii. Gramophone Co. of India Ltd. v. Union of India - 1994 (74) E.L.T. 490 (SC) iii. Abdul Gaffar v. Collector of Customs - 1993 (63) E.L.T. 465 iv. Prakash Pipes and Industries Ltd. v. Collector of Customs - 1993 (68) E.L.T. 779 v. Venku Reddi v. Pichi Reddi and Ors. - (AIR 1956 AP 250) vi. Smt. Ashalata Mitter v. Amiya Kumar Das - (AIR 1958 Cal. 71)
6. We have carefully considered the submissions made by both the sides and have perused the citations referred before us. The appellants at this belated stage raised the additional grounds questioning the exigibility of the impugned products and have also produced documents in support of their further plea that the items are not goods but would become immoveable property at the time, when it comes into existence and hence, no penalty is liable to be paid. The department has objected to raising these grounds on the plea that they are not in the nature of additional grounds but fresh ones, requiring factual investigations. Both the sides have relied on the citations. Before deciding on the issue, it is pertinent to examine the citations relied by both the sides.
(i) In Shri Vallabh Glass Works, the question before the Court was regarding the refund claim filed by the assessee in respect of duty paid by them on different types of glass under T.I. 23A(1). There was no question pertaining to raising of additional grounds in memo of appeal before the court and no ratio has also been laid down on this appeal in this judgdment and, therefore, we do not see any relevance of this citation.
(ii) In Shri Digvijay Cement Co. Ltd., the Tribunal was dealing with a refund case and there at para 7 of the judgment held that the Tribunal under Section 35C(1) of the Central Excises and Salt Act, 1944, [can] pass any order as it thinks fit and it is vested with wide powers to come to a correct and legal conclusion irrespective of the grounds urged before the Tribunal.
(iii) In Abdul Gaffar's case, the Tribunal examined the case in the light of the evidence placed before it. The application had been filed by the Collector seeking permission to place additional evidence in the form of statements, declaration of parties and informers, letters, report of hand-writing experts. The majority order held after examining at length the various rulings of Courts, that the department was making out a new case, which had not been alleged in show cause notice and hence the department should not be permitted to make out a new case on the basis of new documents. The citation is not relevant, as the Tribunal decided the case on the basis of appreciation of evidence on record and the nature of case made out by the department. It was not a case of additional legal grounds pertaining to exigibility of the goods.
(iv) In Jain Exports (P) Ltd., the importer claimed the benefit of Notification No. 431/76. The issue also pertained to licencing under Imports and Exports (Control) Act, 1947 and proceeding pertaining thereto. Before the Hon'ble Supreme Court, the Importers attempted to secure [an] adjournment, which was refused and after hearing the matter, the case was closed for orders. The importers thereafter filed an application for regranting and rehearing the case on the ground that they would like to produce the certificate from Collector (Appeals), which disclosed losses in their company. This was only to answer the query of the Learned Judge as to whether the company had made any profits due to the imports made by them. Viewed from this angle, the Hon'ble Court deprecated this attitude of the Learned Advocates to such fresh hearing of the case. Therefore, this ruling is not at all relevant for the case.
(v) In Prakash Pipes and Industries Ltd., the Tribunal held that the appellate court cannot travel outside the record of the lower court. This observation was in the context of additional evidence which the department wanted to produce, which was never placed during the adjudication proceedings. The Tribunal in the facts of the case did not point to produce additional evidence, hence this is not a relevant citation.
(vi) In Gramophone Co. of India, the Hon'ble Supreme Court permitted the appellants to raise the alternative ground relating to CVD, and the entitlement of the benefit of exemption under Notification No. 69/68, dated 15-6-1968, as the said ground had been raised before the government and the appellate authority. This citation cited by the Revenue is in fact supports the appellant's case and we take note of it.
(vii) In Kiran Singh's case, the Hon'ble Supreme Court held in para 6 that:
"It is a fundamental principle that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of examption and even in [collateral] proceedings. A defect of jurisdication, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
This citation is relevant to this case, as the appellant has challenged the very dutiablity and exigibility of the impugned goods.
(viii) In Venku Reddi's case the Andhra High Court held that admission of documents would necessitate the remand of the case. This ruling cited by the Revenue also helps the appellant in this case.
(ix) In Ashalata's case, the Calcutta High Court held in a suit for declaration, did not permit production of documents, as the court felt that there were same statements contained in subsequent documents evading at best to an inference as to what had happened previously and hence under such circumstances, the documents were not received in evidence in the High Court in terms of Order 41 Rule 27 of Code of Civil Procedure. The ratio of this judgment cited by the Learned Collector is not at all relevant to the facts of the present case.
(x) In Commissioner of Income Tax v. Sujirkar's Tile Works (P) Ltd., the Mysore High Court held that the Tribunal had acted within its jurisdiction in allowing the assessee to raise additional plea. This ruling supports the appellant's case.
(xi) In Commissioner of Income Tax v. Kerala State Co-operative Marketing Federation Ltd. as reported in 1992 (193) I.T.R. 193 has held at page 168 as follows :-
"Following the dscisions of the Supreme Court cited above and agreeing with the view expressed by the Madras High Court in Brahadeewaran's case (1987) 163 ITR 680 we hold that an appellant before the Tribunal could raise any new or additional point for the first time in appeal before the Tribunal even though it had not been raised in any form either before the assessing authority or before the Commissioner of Income Tax (Appeals). We further hold that when once any such new or additional ground is raised before the Tribunal they are duty bound to entertain that ground and render a decision thereon either themselves or by remanding the matter if further investigation into facts is necessitated."
(xii) In Cynamid India Ltd. v. CCE., 1984 (15) E.L.T. 186, the Tribunal allowed an application to raise an additional ground as it related to the [proper] classification of the product and further observed that if, with reference to that ground, further, enquiry was felt needed a remand would be the proper order. Similar view has been expressed in the case of Diamond Cement Ltd. v. Collector of Central Excise as reported in 1991 (56) E.L.T. 823. The grounds raised by the appellant pertain to the exigibility and dutiability of the items in question. This additional ground goes to the root of the issue. The effect of allowing these grounds is to be looked into after hearing the main appeal, i.e. as to whether it is a case for remand or not? Therefore, taking into consideration the ratio of several citations referred to above, the miscellaneous application of the appellant is required to be allowed, and it is ordered accordingly.
7. In parting, we wish to mention, that both the sides have cited several citations which has no bearing on the issue. This should be avoided, as it would save much of Court's time.