TMI Blog2015 (10) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... t is in favour of the revenue. Whether a miscellaneous provision of law can be invoked to permit a thing, which is prohibited by a specific provision or not - Held that:- Even here, if we divest this case from the rest and look at the question of law on a theoretical basis, it is correct to say that if something is not permitted by a specific provision, neither of the parties can take recourse to a residuary or an omnibus provision. But, unfortunately, what the Original as well as the first Appellate Authorities had lost sight of is the fact that the assessee actually wanted the entries in their Bill of Entries to be modified only for the purpose of enabling them to make payment in cash - It is not necessary for an assessee, while mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision? 3. Whether the Tribunal can exercise the discretion of the proper officer under Section 149 of the Customs Act, 1962, especially when the proper officer has had no opportunity to exercise the same? 2. Heard Mr.T.Chandrasekaran , learned counsel for the appellant/ revenue and Mr.Parthasarathy , learned counsel appearing for the first respondent. 3. The respondent/assessee had the benefit of exemption under Notification No.45/2002 Customs dated 22.4.2002 for debiting DEPB credit equal to the duty payable. The respondent used to take credit of countervailing duty paid in their CENVAT account. It is relevant to that the Exim Policy for the period 1999-2004 prohibited the taking of CENVAT credit of CVD paid using DEPB cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee to carry out the amendment of the Bills of Entries. Aggrieved by the said order of CESTAT, the Revenue is before us. 7. If we strictly go by the questions of law framed, we would have no alternative except to answer them in favour of the revenue. The first question of law raised was as to whether the Tribunal could sustain an appeal on a ground that was not considered in the impugned order. Theoretically, our answer would be in the negative, that is in favour of the revenue. 8. Similarly, the second question of law is as to whether a residuary provision, such as the one in Section 149 can be resorted to when something is not permissible under a specific provision dealing with assessment. Even here, if we divest this case fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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