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2020 (7) TMI 357 - CESTAT NEW DELHIPrinciples of Natural Justice - CENVAT Credit wrongly availed - prayer made in the application is that the applicant may be permitted to add certain grounds as also file related documents and to grant an opportunity to the applicant to urge the said grounds at the time of hearing of the appeal - extended period of limitation - interest and penalties - scope of Rule 10 of the 1982 Rules - HELD THAT:- If the appellant has not taken a ground, he cannot be permitted to urge or be heard in support of the ground not taken unless leave is granted by the Tribunal. The Supreme Court in JUTE CORPORATION OF INDIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND ANOTHER [1990 (9) TMI 6 - SUPREME COURT] examined the powers of Appellate Assistant Commissioner under section 251 of the Income Tax Act. After noticing that the Appellate Assistant Commissioner, while hearing an appeal against the order of assessment has the power to confirm, reduce, enhance or annual the assessment, the Supreme Court noticed that the Appellate Assistant Commissioner has further been empowered to remit the case to the Assessing officer for making a fresh assessment. Thus, the Supreme Court observed that the Appellate Assistant Commissioner is entrusted with wide powers. It is in this context, that the Supreme Court examined whether the Appellate Assistant Commissioner had jurisdiction to permit raising of additional grounds for assailing the order of the assessment. The Supreme Court observed that there is no reason as to why the appellate authority cannot modify the assessment order on an additional ground not taken before the Income Tax Officer in the absence of any provision in the Act placing restrictions on the powers of the Appellate Authority in entertaining additional grounds - There is no difficulty in permitting the appellant to urge additional legal grounds relating to exemption notification and vagueness of the show cause notice. So far as the limitation is concerned, a ground had already been taken in the memorandum of appeal and additional grounds are sought to be added to substantiate the main ground. Thus, this additional ground can also be permitted to be urged. Whether the Tribunal should permit the appellant to adduce documents/evidence in support of its plea that the activity carried out by the appellant would fall under the category of ‘works contract’, which was not leviable to service tax before 01 June, 2007? - HELD THAT:- It is a fact that there were conflicting decisions, even of Larger Benches, as to whether the activity of the nature contemplated under ‘works contract’ would be leviable to service tax prior to 01 June, 2007 and it is only in the year 2015 that the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] determined that it would not be leviable to service tax prior to 01 June, 2007 - It would, therefore, be appropriate to permit the appellant to raise this issue by way of additional ground and also permit the appellant to produce document / evidence in support thereof, more particularly when there is no restriction in law and indeed none has been pointed out, in raising this plea at this stage. Thus, leave can be granted to the appellant to raise an additional ground on the issue relating to ‘works contract’ and also to permit the appellant to produce the evidence / documents in support of this plea - the appellant is granted leave to raise additional grounds in the application in regard to the issues discussed above and also to produce evidence/ documents in support of the plea relating to ‘works contract’. Application allowed.
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