Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs United Paper Products on 3 June, 1988
Equivalent citations: 1989(19)ECC302, 1988(18)ECR255(TRI.-DELHI), 1988(37)ELT258(TRI-DEL)
ORDER V.T. Raghavachari, Member (J)
1. Under classification list No. 90/82 effective from 22.4.1982 the respondents M/s. United Paper Products claimed benefit under Notification No. 144/82 dated 22.4.1982 in respect of "corrugated 5 ply printed cardboard cases made out of duty paid kraft paper" manufactured by them and classifiable under Item 17(4) CET. Under order dated 11.10.1983 the Assistant Collector granted approval without benefit of the said notification. On appeal the said order was set aside by the Collector (Appeals) under his order dated 17.9.1984 under which he extended benefit of exemption under the notification. Thie appeal by the Collector of Central Excise, Patna is against that order.
2. While making his submissions on behalf of the appellant Collector, Shri LC. Chakraborty made a request that he should be granted time to take instructions from the Collector for advancing an argument that the subject goods would be printed cartons and for that reason be Ineligible for the concession claimed. His submission was that under the proviso to the notification, benefit would not be available In respect of printed boxes as well as printed cartons, but that the Collector (Appeals) considered the issue before him only with reference to the position whether the subject-goods would be printed boxes and not with reference to the position whether they would be printed cartons and by reason of that omission the order of the Collector Is vitiated and will have to be set aside. Dr. Ghose representing the respndents/assessee objected to this submission and contended that the case for the Department has all along been that the products are printed boxes and never that they were printed cartons and that is why the issue whether they became ineligible for benefit under the notification on the ground that they were printed cartons was never considered either by the Assistant Collector or by the Collector (Appeals) and, therefore, the Department ought not to be permitted to set up this case especially when no such case had been pleaded in the appeal memorandum as it now stands.
3. We have heard submissions on this limited issue from both sides and the present order deals with that limited issue only.
4. Paragraph 1.1 of the grounds of appeal commences as follows:
'The Assistant Collector has correctly and legally held that the product of the assesses namely, card board container is nothing but a card board box."
At the end of paragraph 1.2 it is again stated as follows:
"Hence this product of the assessee is certainly covered by the aforesaid definitions of a box."
Again in paragraph 1.4 it is stated as follows:
"It is obvious from the facts available in records that the character, nomenclature In trade parlance and use, the product of the assessee is a 'box'."
In paragraph 3 at the end it is stated as follows :
"Hence the assesses cannot escape the liability simply by changing the nomenclature from card box to card board container."
In paragraph 4 it in stated as follows:
"Since In shape, character and use it is a box, the product of the assessee is certainly a card board box falling under T.I. 17(4) of the erstwhile tariff entry. And when this is so, the benefit of exemption under Notification No. 66/82 dated 1.3.1982 and Notification No. 279/82 dated 22.11.1982 is not available to the assessee, because their product viz. corrugated printed: card board containers made out of kraft paper in combination of unbleached duplex board which Is essentially a box, Is neither covered by Notification No. 66/82 nor by Notification 279/82".
5. It is, therefore, clear that the present appeal before us proceeds entirely on the basis that the product in issue is a box and is a printed box and hence is disentitled to benefit claimed under notification. As pointed out by Dr. Ghose the proceeding before the lower authorities was also on the basis, so far as the Department is concerned, that the product In issue is a box. When it is noted that the proviso to the notification denies the benefit to the printed boxes as well as printed cartons and the proceedings before the lower authorities (as well as the contentions in the appeal before us as drafted) was to put forward the case for the departmeht that the product In Issue was a box only, It is apparent that the Department has never claimed fill now that the product was a carton. In the circumstances to permit the Department to put forward a piea now that the product in issue would be a carton would be to germit the Department to put forward an entirely new case, and, on the basis thereof, seek to set aside the order-In-appeal even If it may be correct If the product is a box.
6. In effect the prayer of Shri Chakraborty is not to adduce additional grounds in support of the appeal as it now stands but to abandon the grounds already set forth and put forward an entirely a new and inconsistent case in order to have the order-in-appeal set aside. I am of opinion that it would not be permissible to allow such a contention to be raised.
7. Shri Chakraborty submits that as this Tribunal is the final fact finding authority on a question of classification, or on a question of eligibility for exemption under a notification, this Tribunal ought not to be hamstrung by the nature of the proceedings before the lower authorities but it would be open to the Tribunal to look into the matter afresh and arrive at a proper conclusion since the decisions of this Tribunal will be binding on the lower authorities in other similar matters also. Or. Ghose on the other hand submits that benefit under notification had been extended in other simitar instances and that the matter is now not a live issue also, as the tariff itself has changed and in the circumstances the" permission sought for should be refused.
8. I am unable to accept the submission of Shri Chakraborty since what would be decided in the present appeal, as it now stands, would only be whether the product of the appellants, which is claimed by the Department to be a box, would, for that reason, be disentitled to the benefit under the notification. The question whether it would be a carton and; for that reason, be disentitled to the benefit, would not be before the Tribunal for decision in this appeal. Any decision in this appeal, on whether the product is a box and if so disentitled, would not, by reason thereof, determine the eligibility for benefit, or denial thereof, if the product is to be construed as a carton. That question will have to be left open for other and proper proceedings If any wherein the product may be claimed to be a carton and on that basis disentitled to the benefit.
9. As earlier mentioned, the Department's case throughout has been that the product In Issue is a box and this is the specific case repeatedly stated in the appeal before us. To abandon that case altogether and to raise new contention on the basis that the product is a carton would be to permit an entirely a new and inconsistent case to be put forward at this late stage, I see no justification for permitting the Department to adopt such a drastic change of front, virtually converting this appeal into a new appeal.
10. I am, therefore, of opinion that the permission sought for by the Departmental representative ought not to be granted and that the appeal by the Department should be dealt with only on the grounds set forth in the appeal as it now stands.
P.C. Jain, Member (T)
11. I have carefully perused the order proposed by my learned brother Shri V.T. Raghavacharl, Member (J). On the preliminary submission of learned JDR for seeking instructions from the appellant-Collector (Collector of Central Excise, Patna) to adduce an additional ground in the memo of appeal, the ground being that the product manufactured by the respondent firm herein Is a printed carton and not merely a printed box and as such, the benefit of notification 66/82, dated 1.3.1982 would not be available to the respondent firm. I regret respectfully that I am unable to agree with the proposed order.
12. It Is an accepted proposition that the Tribunal Is competent ahd has full powers specifically under the CEGAT (Procedure) Rules, 1982 to allow any addtttenai ground to be raised before the hearing takes place or even during the course of hearing if It is purely a legal submission. The Tribunal is also competent to allow evidence to be brought on record.
13. It has also been held by the Tribunal in a number of decisions-one of the earliest being in the case of Sunrise Electric Corporation, Bombay (1983 ELT 2465) that a question of classification can be raised even at the stage of the Tribunal if no new facts or additional facts are necessary to support that argument. This ground was sought to be raised by the learned JDR after he had a glimpse of the goods produced by the respondent firm when the hearing was just about to start. In the matter of determining the rate of duty on any goods, such goods are always the material evidence on record and therefore, it cannot be said that the learned JDR was seeking to raise any additional ground on any new evidence of fact not already available on record. In fact, the learned JDR's request was a stage earlier to raising the additional ground itself. He was merely seeking permission to get in touch with the appellant-Collector whether the new ground of appeal which he had in mind and as set out above, is appropriate to be raised or not. In my view in the interest of justice and for proper determination of the question that falls for consideration before the Bench whether the Notification 66/82, dated 1.3.1982 Is applicable to the goods manufactured by the respondent firm herein, the learned JDR should be given the permission he has sought. After he has sought the necessary permission from the appellant-Collector he would no doubt make a proper application with adequate reasons as to why he should be allowed to raise the additional ground in the memo of appeal.
Accordingly, I allow the JDR to seek the permission from the appellant-Collector as mentioned supra.