TMI Blog1989 (3) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... se Range-1 Chandrapur to the Petitioners. (6) Xerox copy of letter No. GPMS (a) 2520/84 dated 23-11-1984 from the Petitioners to the Assistant Collector, Central Excise, Chandrapur. (7) Xerox copy of letter No. GPMS/44/912/85 dated 2-7-1987 from the Petitioners to the Chemical Examiner, Central Excise, Central Laboratory Bombay (Camp G.P.M. Hardoli). (8) Xerox copy of letter No. C.No. I (Admn) 8-1/82/1801 dated 5-3-1988 from Assistant Collector, Central Excise Divn. Chandrapur to the Petitioners. (9) Xerox copy of letter No. GLI/Admn/Misc/2/85-/3 dated 13-3-1985 from Inspector Central Excise Sector G.P.M. Hardoli addressed to the Petitioners. (10) Xerox copy of letter No. C. No. GLE/GPM/Misc/2/85-86/732 dated 29-12-1986 from Inspector Central Excise Sector G.P.M. Hardoli addressed to the Petitioners. (11) Xerox copy of letter No. GPMS/10/042/87 dated 5-1-1987 from the Petitioners to the Inspector Central Excise Sector G.P.M. Hardoli Bramhapuri. (12) Xerox copy of Form D-3 dated 4-5-1984. (13) Extracts from Encyclopedia of Chemical Technology by Kirk Othmer (3rd Edition) Volume, 24 (Page No. 456) (14) Copy of M.F. (D.R.) Notification No. 225/86-CE dated 3-4-1984. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking the prior permission of the Tribunal has taken a new ground in the memorandum of appeal that the demand was time barred and now want to substantiate that new ground which the applicants have incorporated in their memorandum of appeal without the prior permission of the Tribunal, by producing the additional documents. This course, according to him, is not permissible under the law. Counting his reply he submitted that in case the applicants are permitted to produce the additional evidence as requested, it would require investigation of facts. Thus, according to their own showing, the present case is a case where the applicants either want to make out a new case or want to fill up the lacunae in their defence case. To support his contentions he cited the following case law (1) State of U.P. v. Manbodhan Lal, AIR 1957 SC 912 (2) Unique Beautycare Product Pvt. Ltd. v. Collector of Central Excise, 1988 (37) ELT369 (3) Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851 (4) Collector of Central Excise v. Bafa (India) Ltd., 1987 (32) E.L.T. 1989. 5. Before we proceed to examine the rival contentions raised by the parties it would be advantageous to state a fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1909. This plea of limitation was not allowed to be raised as a ground of appeal by the Hon ble Supreme Court observing as follows - 10........In the present case, the Municipal Corporation did not plead Section 135 of the Indore Municipal Act, 1909 as a defence, such a plea was not taken in the pleadings or in the trial Court and the District judge should have not entertained such a plea . In the case of M.K. Ranganathan v. Govt. of Madras, AIR 1955 SC 604 it was held by the Hon ble Supreme Court that the Appellate Court will not entertain a point of law raised for the first time, if the point cannot be raised without remanding the case for further evidence. Likewise whether a new plea tried to be raised in the Appellate Court for the first time is one of mixed question of law and fact the Appellate Court should not entertain it for the first time. In the case of Banarsi Das v. Kanshi Ram, AIR 1963 SC 1165 it was held by the Hon ble Supreme Court that the Appellate Court will not permit a point of limitation to be raised where it involves an investigation of further facts. In the instant case admittedly the plea that the demand made in the show cause notice was time-bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax, supra is also distinguishable. It speaks of the powers of the Tribunal to entertain new point in appeal and therefore is not applicable to the instant case because there cannot be any dispute that this Tribunal has a jurisdiction to entertain new points in appeal subject of course to the provisions of law. The only other case Commissioner of Income Tax v. Godavari devi Saraf, supra relied upon by the applicants is also not applicable to the instant case as it speaks that the law declared by the High Court in its State is binding on Tribunal in another State. 9. At this stage it may also be stated that we are aware of Rule 10 of the CEGAT (Procedure) Rules, 1982 which provides - 10. Grounds which may be taken in appeal. - The appellant shall not except by leave of the Tribunal, urge or be heard in support of any grounds not set forth in the memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or those taken by leave of the Tribunal under these rules: Provided that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessity of leave of the Tribunal only when any ground of objection was not set forth in the memorandum of appeal. 13. Be that it may, in the instant case admittedly the applicants have not sought any permission from this Tribunal to set up a new case in the memorandum of appeal that demand made in the show cause notice was time barred and have incorporated the plea of limitation in the memorandum of appeal of their own. Hence the contention of the learned counsel for the applicants that their request to produce additional evidence be granted since they have already taken up it as a ground in their memorandum of appeal filed in this Tribunal cannot be accepted. In other words the contention of the learned counsel for the applicants that they have taken up the plea of limitation in their memorandum of appeal cannot, in our considered opinion, be a ground and therefore their prayer for addl. evidence under Rule 23 of the CEGAT (Procedure) Rules has to be examined in the light of the provisions of the said Rule. We proceed accordingly. 14. Rule 23 of the CEGAT (Procedure) Rules provides - 23. Production of additional evidence. - (1) The parties to the appeal shall not be enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s below has decided the case without giving sufficient opportunity to any party to adduce any evidence or if the Tribunal considers such evidence necessary to meet the ends of justice. However, such powers to admit additional evidence should be exercised cautiously and sparingly and only in exceptional cases and the new evidence should have a direct and important bearing on a main issue in the case [See Parsoliim Tliakiir v. Lal Mohar Thakur - AIR 1931 PC 143]. In the case of State of U.P. v. Manbodhan Lal - AIR 1957 SC 912 it was held that It is well-settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. In that case the Hon ble Supreme Court after stating the aforesaid well-settled position in law refused to admit additional evidence observing as follows - Without looking into the additional evidence proposed to be placed before us, we indicated that we would not permit additional evidence to be placed at this stags when there was sufficient opportunity for the State Government to place all, the relevant matters before the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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