2006 (8) TMI 184 - SUPREME COURT

Whether the machinery and equipment imported by the assessee-respondent was classifiable under Heading 98.01 of the First Schedule to the Customs Tariff Act, 1975 (for short "the Tariff Act") and granted the benefit of Project Import under the Project Import Regulation to the assessee?

Held that:- Revenue had made various submissions such as (1) that absence of a contract specifically registered for import of construction material; (2) that note (2) to Chapter 98 according to which Heading 98.01 would apply to goods which are imported in accordance with the Project Imports Regulations, 1986; (3) that under Regulation 4 the assessment under Heading 98.01 shall be available only to those goods which are imported against one or more specific contract which have been registered with the appropriate Customs House. In the absence of a specific contract being registered Heading 98.01 would not be applicable to the impugned goods imported by the respondent; and (4) that the benefit of concessional duty under Project Import was not available if the goods had arrived before the application was submitted for registration of the goods. All these submissions were not allowed to be raised by the tribunal as these submissions had been made for the first time before the Tribunal. These submissions had neither been raised before the adjudicating authority nor the first appellate authority. It was held by the Tribunal that the Department could not be allowed to make out a new case at the appeal stage.

We agree with the Tribunal that the revenue could not be allowed to raise these submissions for the first time in the second appeal before the Tribunal. Neither adjudicating authority nor the appellate authority had denied the facility of the project import to the respondent on any of these grounds. These grounds did not find mention in the show cause notice as well. The Department cannot be travel beyond the show cause notice. Even in the grounds of appeals these points have not been taken. Appeal dismissed.