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2017 (11) TMI 828 - BOMBAY HIGH COURTAdmission of additional grounds - Tribunal procedure rules - without deciding the issue of admission of additional evidence, tribunal straight away decided the issue on merit - SSI Exemption - use of Brand name - The case of the Appellant was that while it was manufacturing membrane switches as per drawings and specifications given by its purchaser, the Appellant was printing the name of its customer on the membrane switches. The contention of the Appellant was that its customers themselves are manufacturers of electrical machines and equipments and the membrane switches are used by them for manufacture of electrical machines. The printing of the names of its customers did not amount to use of brand name or trade name as defined in explanation 9 in the said Notification 1 of 1993. Held that: - The purport of Rule 10 is that the Appellate Tribunal in deciding an Appeal, need not remain confined to the grounds set forth in Memorandum of Appeal. However, if the Tribunal wants to consider a ground which is not set forth in Memorandum of Appeal, it is a duty of the Tribunal to give sufficient opportunity to the parties to the Appeal of being heard on the said ground. If the Appellant wants to urge a ground, which is not taken in the Memorandum of Appeal, he is entitled to do so by seeking a leave of the Tribunal. While dealing with such an Application made for seeking leave under Rule 10 of the Procedure Rules, the Appellate Tribunal is required to apply its mind to a limited issue whether leave is required to be granted. However, while deciding the said Application, the Appellate Tribunal cannot decide the merits of the additional grounds sought to be urged. When such an Application is made for grant of leave, either a leave has to be granted or rejected. If leave is granted, at the time of final hearing of the Appeal, it is open to the Appellant to urge the ground in respect of which leave has been granted. In the present case, the Appellate Tribunal has purported to go into the merits of the additional grounds sought to be raised in the Application seeking grant of leave under Rule 10. The said course adopted by the Appellate Tribunal is completely erroneous and therefore, the order passed in the Application made by the Appellant for grant of leave is completely illegal - the error committed by the Appellate Tribunal is not merely a procedural error. The Appellate Tribunal has completely overlooked the object of proviso Rule 10 - matter placed on remand. Whether or not the Appellants i.e. M/s Kohinoor Elastics Private Limited are entitled to the benefit of the aforementioned Notification? - Held that: - The customer is getting the brand/trade name affixed because he wants the ultimate customer to know that there is a connection between the product and him. Of course the intention of the customer is not relevant for the purposes of this Notification. This is being mentioned only to indicate that interpretation sought to be placed by Mr. Sridharan would enable manufacturers, who are otherwise not eligible, to get manufactured from small scale industries like the Appellants their “goods” or some inputs, affix their brand/trade name and still avail of exemption. When the wording of the Notification are clear and unambiguous, they must be given effect to. By a strained reasoning benefit cannot be given when it is clearly not available. Appeal allowed in part and part matter on remand.
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