ORDER
Harish Chander, President
1. The revenue has filed the above cap-tioned miscellaneous application making a prayer for admission of the additional evidence, viz. affidavit of Shri R.N. Rustagi son of Shri J.N. Rustagi, Assistant Collector of Central Excise, Ahmedabad. At the outset of the hearing, the Bench pointed out that the miscellaneous application filed by the respondent is a defective one and is not supported with an affidavit. To this Mrs. Zutshi, the learned Chief Departmental Representative stated that she wants time to rectify the defect.
2. Shri L.P. Asthana, the learned advocate who has appeared on behalf of the respondent/appellant, stated that the application is defective and he does not have any objection for the grant of time to the applicant to rectify the defect, but he does not object for the taking of the application for hearing being not accompanied by an affidavit. To this Mrs. Zutshi, the learned CDR stated that if the learned advocate has got no objection then the miscellaneous application may be taken up for hearing. Both the sides pleaded for taking of the miscellaneous application for hearing. Since both the sides do not have any objection for the hearing of the miscellaneous application, accordingly, we proceed to hear the same.
3. Mrs. Zutshi, the learned CDR pleaded that though the arguments have been concluded by the appellant and as a respondent in reply she is still on her legs. She is well within her rights to file an application for grant of permission for the admission of additional evidence and she has not concluded her arguments and she was to resume her arguments today. Mrs. Zutshi pleaded that since the additional evidence is in the nature of an opinion of a technical expert and as such, the same should be admitted. She felt that for the proper disposal of the appeal this evidence is very essential and as such, she has filed the same. She pleaded for the admission of the same.
4. In reply, Shri L.P. Asthana, the learned advocate pleaded that this evidence is not contemporaneous evidence and this evidence created at appellate stage by the respondent is for filling in the gaps and lacunae of the matter and as such, the same should not be admitted at this stage. Shri Asthana argued that the applicant/respondent was well within his/her rights for placing any evidence on record at the original stage. Having failed at that stage, the applicant/respondent should not be permitted to file this evidence at this stage and the appellate forum should not be converted into an investigating agency. Shri Asthana, the learned advocate referred to Rule 23 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 and also referred to the judgment of the Hon’ble Supreme Court in the case of
State of U.P. v. Manbodhan Lal Srivastava reported in AIR 1957 SC 912
where the Hon’ble Supreme Court had held that parties to an appeal should not be permitted to adduce additional evidence to fill in the gaps and lacunae. He also referred to another decision of the Tribunal in the case of
Econtherm Systems Pvt. Ltd. v. Collector of Customs reported in 1991 (55) E.L.T. 382 (Tribunal)
where the criterion for admission of additional evidence has been dealt at length by the Tribunal. Shri Asthana pleaded for the rejection of the application.
5. Mrs. Zutshi, the learned CDR in reply again pleaded for the acceptance of the application and pleaded that the respondent/appellant had filed certain affidavits before the adjudicating authority and as such the applicant/respondent pleads for the admission of the additional evidence at this stage.
6. We have heard both the sides and have gone through the facts and circumstances of the case. It is not disputed that in the present matter arguments have been concluded by the appellant and Mrs. Zutshi, the learned CDR who has appeared on behalf of the respondent is still on her legs in reply to the arguments addressed by the learned advocate. The Tribunal in the case of
Collector of Central Excise, Bangalore v. Indian Telephone Industries Ltd., Bangalore reported in 1987 (29) E.L.T. 656
had held as under :-
“22. So far as the request for the filing of additional evidence on behalf of the department is concerned, we would like to observe that this was made when the arguments from both sides had been almost completed. We also found that these additional documents included some literature of another manufacturer, namely, M/s. Usha Electronics and prima facie, it is not at all clear as to how this literature can at all have any relevance to the matter before us. It appears that the department would like to argue that the product of Usha Electronics is identical. We are not inclined at this late stage to permit the opening of such a controversy which is also not a part of the pleadings before us. Similarly, the department proposes to file as additional evidence copy of a letter from Karnataka Power Corporation Ltd. dated 1st September, 1986, well after the commencement of the hearing of this matter before the Tribunal. The obtaining of this letter appears to be in the nature of an investigation taken up while the appeal is being heard by the Tribunal and is, therefore, rejected. The department has also requested to be permitted to file some literature on MAX III equipment. This has not been objected to by the respondents. Being essentially in the nature of a catalogue, although belated, the filing of this literature as additional evidence is admitted.”
Now by the present application the applicant seeks admission of affidavit of Shri R.N. Rustagi who is working as an Assistant Collector, as an expert. He was not connected with the adjudication in any way, and Mrs. Zutshi confirms the same also in the open court. Section 45 of the Indian Evidence Act relates to the recording of evidence as to the opinion of technical experts. Section 45 of the Indian Evidence Act is reproduced below :-
“45. When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identify of handwriting (or finger impressions), the opinions upon that point of persons specially skilled in such foreign law, science or art, (or in questions as to identity of handwriting) (or finger impressions) are relevant facts. Such persons are called experts.”
In the matter before us, the matter was examined at length by the adjudicating authority. There were repeated hearings before the adjudicating authority and the chemical examiner’s opinion was also taken. By the present application the appellant is only trying to fill in the gaps and lacunae in the proceedings which are pending before the Tribunal. Hon’ble Supreme Court in the case of
State of U.P. v. Manbodhan Lal Srivastava reported in AIR 1957 SC 912
had observed as under :-
“It is well-settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties.
The Supreme Court would not permit additional evidence to be placed in appeal when there was sufficient opportunity for the appellant to place all the relevant matters before the High Court itself.”
We respectfully follow the decision of the Hon’ble Supreme Court and are of the view that by the present application the applicant is trying to fill in the gaps and lacunae in the appeal pending before us and there is also no sufficient cause, and the applicant has not been able to show that he was prevented by sufficient cause in not filing this evidence before the lower authority. Accordingly, we do not find any merit in the application. The miscellaneous application is rejected.