By TIOL News Service

MUMBAI, JAN 25, 2016: IN relation to the appeals filed by them against the orders passed by the Commissioner (A), Pune, the appellant has filed miscellaneous applications seeking permission of the Tribunal to raise the additional ground not set forth in the appeal.

The additional ground that the applicant wants to insert is -

"Without prejudice to the other submission made in the appeals, it is submitted that the applicant has not recovered and duty from the customers. Therefore, the sale price of the resultant materials should be treated as cum duty price".

In support of this additional ground, the applicant referred to the definition of s.4 and the Explanation to Section 4 of the CEA, 1944. They also rely on letter D.O F.No. 384/1/2003-TRU dated 28.2.2003 and the decisions in Sri Chakra Tyres [ 2002-TIOL-51-SC-CX-LB ], Indian Plastic Industries 2007-TIOL-688-CESTAT-AHM, Reliance Industrial Products 2010-TIOL-1733-CESTAT-AHM, SC Products 2007-TIOL-1808-CESTAT-DEL & Madras Rubber Factory Ltd. 2002-TIOL-49-SC-CX.

Inasmuch as it is their submission that the duty calculation should be made considering invoice value as cum-duty price and the demand confirmed should be re-calculated.

The AR submitted that since the grounds proposed for addition in the appeals are involving mixed question of fact and law and more of fact, the fact necessary to support the legal plea was never raised at time of filing reply to SCN or before the appellate authorities earlier, without which legal pleas cannot stand. Reliance is placed on the following decisions in support viz. Dempo Engineering Works Ltd. 2015-TIOL-85-SC-CX, Special Tools (P) Ltd. 2015-TIOL-2157-HC-ALL-CX, Hi-Tech Arai Ltd. 2008-TIOL-2071-CESTAT-MAD & Hindustan Organic Chem. Ltd. 2010-TIOL-265-CESTAT-MUM.

The Bench extracted the following paragraph 3 from the apex Court decision in CCE vs. Dempo Engineering Works Ltd. 2015-TIOL-85-SC-CX where it is observed -

"3. Mr. Jaideep Gupta, learned senior counsel appearing for the Department, has argued, and rightly so, that the issue as to whether the product is marketable or not was not even raised by the respondent in reply to the show cause notice nor was it argued before the Commissioner and therefore on that ground the Tribunal could not have allowed the appeal".

Thereafter, the CESTAT observed -

"5.1 We find that the judgment of the Hon'ble Supreme Court cited above is applicable in the facts of the present case and in our considered opinion, the new ground which the applicant is seeking to raise cannot be raised at this stage as the ground is not purely legal in nature. Consequently, we do not find any merit in the applications moved by the applicant/appellant and we dismiss the same…."

The appeal was posted for hearing on 29.01.2016.

In passing : Also see 2005-TIOL-155-SC-CX-LB.

(See 2016-TIOL-250-CESTAT-MUM)