TMI Blog2010 (6) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... tion - C/489-491/2006 - C/86-88/2010(PB) - Dated:- 7-6-2010 - S/Shri D.N. Panda, Rakesh Kumar, JJ. REPRESENTED BY : S/Shri A.R.M. Rao and R.K. Hasija, Advocates, for the Appellant. Shri S.K. Panda, Jt. CDR, for the Respondent. [Order per : D.N. Panda, Member (J)]. - The appeal case Nos. C/489-491 of 2006-Cus were heard on several occasions. But did not reach to its conclusion for some reason or other. In July 2009, there was an averment by the appellant that they shall file a Miscellaneous Application to add new grounds, serving copy thereof on Revenue, for their defence plea. Accordingly, the appellant prayed time of two weeks for that purpose. To such a prayer, revenue desired that the application, upon filing by App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal)]. Thus excess excise duty stands paid by the appellant in respect of the DTA sales of the marble slabs/tiles. If the customs duty demand on the imported marble slabs is held to be sustainable within the normal period of limitation as held by this Hon ble Tribunal in Jain Grani s case, then the appellant submits that the customs duty demand on the imported items is to be adjusted against the excise duty equal to customs duty paid on the DTA clearances of the goods. This principle of adjustment of customs duty vis-a-vis the excise duty paid on the DTA clearances has already been held to be permissible in the following judgments of this Hon ble Tribunal : (1) Nikhil Industries Pvt. Ltd. v. CCE - 2005 (180) E.L.T. 321 (T) (2) STL E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C (Airport Admn.), Kolkata reported in 2007 (219) E.L.T. 991 (Tri. - Kolkata) = 2009 (13) S.T.R. 457 (Tribunal) for its plea aforesaid and in the case of Nikhil Industries Pvt. Ltd. v. CCE, Jaipur reported in 2005 (180) E.L.T. 321 (Tri. - Del.). He further submits that tax adjustment as raised in the additional ground of appeal as aforesaid, is permissible, and that is not deniable. 5. To the aforesaid propositions of law and factual matrix, Revenue replies today submitting that the appellant is not entitled to the adjustment of the taxes paid which was not being decided by the Adjudicating Authority in absence of any pleading in that behalf before him. Raising of altogether a new plea today by the Miscellaneous Application is not enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He cites the judgment of Apex Court in Sahakari Khand Udyog Mandal Ltd. v. CCE Cus. reported in 2005 (181) E.L.T. 328 (S.C.) and also in the case of CCE, Kanpur v. Premium Suiting Pvt. Ltd. reported in 2010 (251) E.L.T. 71 (Tri. - Del.). 8. Having heard both sides and appreciating that a question of law arises in this case out of the additional ground taken by the appellant through the Miscellaneous Application, we are of opinion that the appellant deserves a hearing on that ground. Also we have noticed that when adjudication in this case was done on 24th April 2006, learned Adjudicating Authority had no advantage of going through the decision of the Tribunal in appeal case No. 472-473 of 2006 in M/s. Jain Grani Marmo Private Ltd. and A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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