TMI Blog2017 (4) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... for the first time before first appellate authority and if so, the extent to which the freight is excluded from the purview of tax. As facts pertaining to the legal issue requires to be examined, it would be appropriate for the original authority to undertake this task - matters remanded back to the original authority to consider the plea of the appellant that the goods were transported by individual truck owners - matter on remand. - ST/184 & 304/2011 - A/86317-86318/17/STB - Dated:- 9-3-2017 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri D H Nadkarni, Advocate for the appellant Shri M P Damle, Assistant Commissioner (AR) for the respondent Per: C J Mathew: Dispute pertains t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, hence, beyond the scope of taxability as recipient of goods transport agency service but this plea was rejected in the impugned orders on the premise of inadmissibility of new grounds as per rule 5 of Central Excise (Appeals) Rules, 2001. 3. Heard Learned Counsel for appellant and Learned Authorized Representative. 4. The crucial facet of taxability was raised but not considered in the impugned orders. Taxability is a primary requisite for raising a demand and in the absence of law providing for levy of the tax, a demand cannot be allowed to sustain merely owing to procedural rigours. Learned Counsel places reliance on the decision of the Hon ble Supreme Court in National Thermal Power Co Ltd v. Commissioner of Income Tax [199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o issues arising out of the appeal before the Commissioner of Income-tax (Appeals) takes too narrow a view of the powers of the Appellate Tribunal [vide, e.g., C.I.T. v. Anand Prasad (1981) 128 ITR 388 (Delhi), C.I.T. v. Karamchand Premchand P. Ltd. - (1969) 74 ITR 254 (Guj.) and C.I.T. v. Cellulose Products of India Ltd. - (1985) 151 ITR 499 (Guj.) (FB)] . Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the said sub-section or elsewhere in the Act that the said general words were intended to receive their wide meaning and were not to be construed in a limited sense with the aid of the ejusdem generis rule. A departmental proceeding like penalty proceedings were, therefore, placed outside the scope of the said sub-section. This view was quoted with approval by a learned Single Judge of the Bombay High Court in C.C. Industries Others v. H.N. Ray Another -1980 (6) E.L.T. 442 at 453 . These two cases, therefore, clearly support the view canvassed before us by the learned Additional Solicitor General. 9. We have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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