Customs, Excise and Gold Tribunal - Delhi
Diamond Cements Ltd. vs Collector Of Customs on 2 July, 1990
Equivalent citations: 1990ECR218(TRI.-DELHI), 1990(50)ELT190(TRI-DEL)
ORDER Harish Chander, Member (J)
1. M/s. Diamond Cements Ltd., a Unit of Mysore Cements Ltd. Birlapur, P.O. Narsingarh, Damoh (M.P.) have filed an appeal being aggrieved from the order passed by the Additional Collector of Customs, Bombay. Shri Kamal Parshurampuria, the learned Senior Advocate had appeared on behalf of the applicant and Shri M.S. Arora, the learned JDR for the respondent.
2. At the outset of the hearing, Shri Arora, JDR had raised a preliminary objection that no valuation or rate of duty is involved and jurisdiction vests with the regional bench. Shri Kamal Parshurampuria, the learned senior advocate in reply stated that the jurisdiction vests with the special bench as classification was in dispute and he has filed an application for the grant of necessary permission for the raising of the additional ground of appeal No. (xxv). Shri Kamal Parshurampuria, the learned advocate pleaded that the appellant may be granted permission to raise this additional ground of appeal otherwise the appellant will suffer irreparable loss and he also argued that for raising additional ground of appeal there is no bar at this stage, and this additional ground can be raised for the first time before the Tribunal on the basis of the material already available on record.
3. Shri M.S. Arora, the learned JDR who has appeared on behalf of the respondent, opposes the permission for the raising of the additional ground of appeal at this stage, as Shri Arora stated that the impugned order does not touch the classification issue at all.
4. Shri Kamal Parshurampuria, the learned Senior Advocate in reply referred to para No. 2 of the internal page 3 of the order-in-original where the Additional Collector has duly touched the classification aspect but has not given any finding in this regard. Shri Kamal Parshurampuria pleaded that in case necessary permission for raising the additional ground of appeal is not granted, it will amount to grave injustice and the appellant will suffer irreparable loss and the whole case rests on the classification under the Customs Act, 1962 as well as ITC which are also dependent on the classification given under the Customs Act.
5. We have heard both the sides and have gone through the facts and circumstances of the case. The appellant proposes to raise this additional ground of appeal seeking the classification of the goods under heading 8503 of the Customs Tariff and under Heading 8483.10 and not under Heading 8483.30. Hon'ble Andhra Pradesh High Court in the case of Commissioner of Income Tax, A.P. v. Gangappa Cables Ltd. reported in 116 ITR 778 had held that fresh plea can be taken before the Tribunal for the first time on the basis of the material already available on record. Relevant extract from the said judgment is reproduced below :-
"The Appellate Tribunal disposing of an appeal under the I.T. Act has got the power to allow the assessee to put forward a new claim, notwithstanding the fact that such a claim was not raised by him before the ITO or the AAC, provided there is sufficient material on record to allow such a claim.
The assessee, for the first time, raised a plea in second appeal before the Appellate Tribunal that the expenditure incurred by the assessee before it went into commercial production was an admissible deduction for the purpose of Section 80J(1) of the I.T. Act. The revenue resisted the claim on the ground that the said claim having not been put forward by the assessee before the ITO or the AAC, it could not be raised in second appeal. The Tribunal held that the directors' report accompanied by balance sheet and profit and loss account and other statements were filed by the assessee before the ITO and practically all the details for allowing a claim under Section 80J(1) of the Act were on record and hence it was open to the Tribunal to allow such a claim. On a reference:
Held, that the Tribunal was correct in allowing the claim of the assessee as there was material on record for allowing the same."
We are also of the view that additional ground of appeal can always be taken at the appellate forum.
6. In view of the above discussion and the judgment of the Hon'ble Supreme Court in the case of Addl. CIT v. Gurajargravures P. Ltd. (1978) 111 ITR 1 (SC) , we allow the appellants' request for raising the additional ground of appeal and we order that additional ground No. (xxv) should be read as under :-
"The imported goods being parts suitable for the use solely or principally in the DG Set of 4000 KVA rating make NIIGATA, Japan are components and parts and cannot be classified as bearings/bushes and will fall under 8503 or 8483.10 being a specific item covering chem shafts and crank shafts. Hence under no event these items can be classified under Heading 8483.30."
7. In the result, the miscellaneous application for raising of the additional ground of appeal is allowed.