TMI Blog1993 (3) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... m ought to have been considered and pronounced upon. The ld. Counsel referred to the written submissions before the Collector (Appeals) dated 25-4-1989 wherein it has been submitted as follows :- In respect of the three Bills of Entry Nos. 908, 909 and 910, as already stated in Para 2 of the grounds of Appeal, a wrong notification has been made applicable, instead of applying correct Notification No. 88/88. 2. The ld. Counsel submitted that it is well-settled that a purely legal question can be raised at the appellate stage even though not agitated before the lower authorities. He cited the case law reported in 1991 (51) E.L.T. 631 (S.C.) in the case of Assistant Collector of Central Excise v. Ramdev Tobacco Company as also the Tribunal s decision reported in 1991 (53) E.L.T. 437 in the case of Hindustan Platinum Pvt. Ltd. v. Collector of Central Excise to say that additional grounds can be raised at the appeal stage. 3. Shri J.N. Nair, the ld. DR opposed the application for adducing additional grounds and submitted that the issue is linked with the appeals already decided by the Tribunal s Order Nos. 440-445/92-D, dated 13-10-1992. The ld. DR, further, submitted that the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w be listed for hearing on merits. 5. [Order per : S.L. Peeran, Member (J)]. - I have gone through the order proposed by my learned brother but I express my inability to agree to the same. 6. With due respect to my learned brother, I may point out that my learned brother has given reasons to reject the grounds made out in additional grounds proposed to be brought on record. I may hereby point out that at this stage, we have to examine only as to whether the additional grounds raised at this stage could be permitted to be raised. The additional ground sought to be raised is noted herein below :- That the learned Collector (Appeals) grossly erred in not considering their plea which was specifically taken before him that in respect of three bills of entry Nos. 908, 909 and 910 a wrong notification had been made applicable instead of applying correct Notification No. 88/88-Cus. But he has not even discussed this submission/ground. Though it is true that the appellants due to sheer inadvertence did not specifically mention the fact of application of wrong notification in their claim for refund application but they mentioned the correct amount i.e. 45% which they had paid in exces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide the issue on the following points of difference- (i) Whether the additional ground raised by the applicant to be dismissed for the reasons stated in the order of Member (Technical); or Whether the additional ground raised by the applicant to be allowed for the reasons stated in the order of Member (Judicial). Sd/- (S.L.Peeran) Member (Judl.) Sd/- (K.S. Venkataramani) Member (Tech.) 7. [Order per : G.P. Agarwal, Member (J)]. - The aforesaid points of difference have been referred to me by the Hon ble President in terms of sub-section (5) of Section 129C of the Customs Act, 1962. 8. Arguing on behalf of the appellants, Shri K.K. Anand, learned Counsel, submitted that the appellants had contested the levy of auxiliary duty at 45% under Notification No. 85/88 by filing the refund claim, calculating the duty on the basis of the exemption Notification No. 88/88, which was rejected by the Assistant Collector. On appeal, the appellants submitted the written submissions stating that In respect of the three Bills of Entry Nos. 908, 909 and 910, as already stated in para 2 of the grounds of appeal, a wrong Notification has been made applicable, instead of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared in the Bills of Entry and the appellants have paid the duty and fine on the subject goods in terms of the said adjudication Order and, therefore, they were bound to substantiate their claim to say how the goods will be eligible for auxiliary duty under exemption Notification No. 88/88 as wood roughly squared and half squared, but not further manufactured which is the description given by them in the Bills of Entry (and which had been turned down by the Additional Collector and to which Notification 88/88 relates) because the Adjudication Order, referred to above, inter alia notes the admission of the importer that the goods imported are scantlings other than wood in the rough. In this view of the matter, the Misc. Application for raising additional grounds is without substance. Here it may be noted that the said adjudication Order Nos. 14/9 to 11/88 Cus., (Off) dated 28-4-1988 passed by the Additional Collector of Customs, Mangalore, is itself under challenge before this Tribunal in Appeal No. C/3197/89-D wherein in ground No. 6 it is stated that the goods in question were eligible for Nil duty assessment under Customs Basic and Additional Duty Rules and was liable to only 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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