TMI Blog2018 (9) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... the question as aforesaid without it having been raised, argued or discussed during the course of hearing and without it having put the parties to notice on it - decided in favor of revisionist. Whether the Hon’ble Tribunal was justified in law to hold that the Mild Steel Welding Electrodes and Cast Iron Welding Electrodes may be different goods but are not the goods of a different nature as both are welding electrodes when the raw material used, manufacturing process, chemical composition, machines required for manufacturing, end use of both types of electrodes and common parlance meaning of both types of electrodes is completely different? - Held that:- The relevant aspects of the matter as pointed out by Sri Mishra are based on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionist in ground of appeal filed against the impugned order nor argued during the pleadings by the revisionist or the respondent. (ii) Whether on the facts and circumstances of the case, the Hon ble Tribunal was justified in law to hold that the Mild Steel Welding Electrodes and Cast Iron Welding Electrodes may be different goods but are not the goods of a different nature as both are welding electrodes when the raw material used, manufacturing process, chemical composition, machines required for manufacturing, end use of both types of electrodes and common parlance meaning of both types of electrodes is completely different. Learned counsel for the revisionist Sri N.C. Mishra as well as Sri Rohit Nandan Shukla, learned counsel ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4; Authorised Officer v. M.M. Krishnamurthy, 1998 970 SCC 138; Commissioner of Central Excise v. Amar Bitumen and Allies Products P. Ltd., (2007) 9 RC 40. Moreover this Court finds that the Divisional Level Committee did not reject the review-application on the ground of its maintainability, but on merits, therefore, for this reason also it was not justified on the part of the Tribunal to have considered a totally new issue which had not been pleaded nor argued. In view of the above, the question no.1 is answered in the negative, i.e. in favour of the revisionist and against the revenue. As regards the second question of law, the submission of Sri N.C. Mishra, learned counsel appearing for the revisionist was that earlier the revisionis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor did the Tribunal consider the same in correct perspective. The Tribunal was swayed by a circular of the Commissioner wherein Black White T.V. and Coloured T.V. were held to be items of same nature. In this regard he invited attention of the Court to a government order dated 27.9.2002, a copy of which has been filed alongwith the bunch of compilation of cases and authorities after serving the same upon the respondent s counsel wherein after seeking legal opinion it has been held that White Polyester Staple Fibre and Grope Died Black Polyester Staple Fibre were goods of different nature for the purposes of section 4-A (Explanation-5) of the Act 1948. He also submits that in fact government order dated 27.9.2002 has been mentioned by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve leaving out relevant parameters as also the grounds raised by the appellant before it therefore it erred while recording it's findings on this question which have to be set aside for reconsideration by it. Question No.2 is answered accordingly. It is also open for the respondents to raise the question of maintainability of the review application before the Tribunal, as this is an issue which may go to the root of the matter. The Tribunal shall be at liberty to consider the same. In view of the above discussion, the impugned judgment of the Tribunal dated 26.3.2003 is hereby quashed. The matter is remanded back to the Tribunal for re-consideration. Appeal No.5 of 2003 of the revisionist shall now stand restored before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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