ORDER
G.A. Brahma Deva, Member (J)
1. This miscellaneous application is filed by the Department/Respondent under Rule 23 of the CEGAT (Procedure) Rules, 1982 for bringing additional evidence on record.
2. Shri B.K. Singh, learned SDR for the Revenue, in support of this application, submitted that matter involved in this appeal is as to whether the goods imported which have been found to be ‘electron gun assembly with beaded body’ could qualify for benefit under notification No. 345/86-Cus. dated 16-6-1986. Since the interpretation of notification is essential to decide the issue, the opinions were sought from M/s. ELCINA and Department of Electronics and same may be taken on record to consider the issue. He said that appellants produced an opinion dated 4-10-1989 from the Department of Electronics through M/s. ELCINA which was referred to in the impugned order and since same was incomplete in nature, respondent approached the concerned officials of ELCINA to obtain specific clarification. He said that fresh opinion is in continuation of the earlier opinion obtained by the appellants and these subsequent documents are necessary to arrive at the conclusion and proper disposal of the case. He said that since the application is filed under Rule 23 of CEGAT (Procedure) Rules, the additional evidence can be produced by anyone since Rule 23 refers to parties to the appeal and it is within the discretion of the Tribunal to admit such evidence and such a discretion should be exercised judiciously and there is nothing wrong in admitting at later stage if the additional evidence is relevant and if it considers necessary to meet the ends of justice. He submitted that Rule 23, CEGAT (Procedure) Rules is similar to the provision in the C.P.C. relating to production of additional evidence before an Appellate Court as used to be found in Order 41 Rule 27 C.P.C. He cited the decisions reported in (i) AIR 1986 Cal 403, (ii) AIR 1963 SC 1526, (iii) AIR 1965 Punjab 494, (iv) AIR 1987 SC 558 and (v) 1991 (51) E.L.T. 321 (Cal.), with reference to Order 41 Rule 27 C.P.C. He referred to the decision of Supreme Court in the case of Mohan Lal Shanji Soni v. Union of India (1992 (61) E.L.T. 521 (SC) wherein it was held with reference to Section 540 of Code of Criminal Procedure that additional or fresh evidence after closure of evidence by one or both sides can be taken on record if requirements of justice so commend and Court has inherent power to allow it at any stage of proceedings so long as Order or Judgment is not pronounced. He also referred to the following decisions of the Tribunal with reference to Rule 23 CEGAT (Procedure) Rules :-
1. Lili Foam Industries Pvt. Ltd. v. Collector of C. Ex. -1990 (46) E.L.T. 462.
2. Gaurav Paper Mills v. Collector of Central Excise – 1989 (41) E.L.T. 522.
3. S.S. Rajan v. Collector of Customs -1993 (66) E.L.T. 102.
4. C.C.E. v. Prakash Calendar Factory -1992 (61) E.L.T. 81.
3. While countering the arguments Shri L.P. Asthana, learned counsel for the party drew our attention to the detailed objections filed by the appellants with reference to the miscellaneous application and submitted that additional evidence cannot be permitted at this stage as this was filed very late in the proceedings at the appellate stage that too during the course of arguments of the Departmental Representative and on completion of the arguments of the appellants. It is settled principle that the Adjudicating Authority cannot go beyond the show cause notice and since the Adjudicating Authority had no occasion to consider this piece of evidence and if it is allowed it would cause substantial prejudice to the party at this stage. This additional evidence was obtained by the Departmental Representative on 21-5-1993 and 9-7-1993 during the appeal proceedings before the Tribunal and after lapse of time on passing the Adjudication order. He said that the additional evidence obtained by the department is not in continuation of the earlier opinion obtained by the party. Since the previous letter did not touch the exemption notification nor with reference to beaded body but only confined to Import Trade Control aspect, it is neither a technical opinion nor trade opinion and hence same cannot be permitted at this stage. None of the cases relied upon by the Departmental Representative referred to the issue where Respondent/Department was permitted to adduce additional evidence in the appeal proceedings except in the case of Prakash Calendar Factory (Supra) and that too Department was permitted to adduce evidence in the appeal filed by the Department and the miscellaneous application filed by the Department in the Assessee’s appeal has been rejected as can be seen from para 10 of that judgment. He contended that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna and to fill in gap at later stage. He referred to the following decisions in support of his contention :-
1. AIR 1951 SC 196.
2. AIR 1980 SC 446.
3. AIR 1976 SC 1053.
4. AIR 1957 SC 912.
5. 1992 (62) E.L.T. 478.
6. 1993 (64) E.L.T. 100
7. 1985 (22) E.L.T. 63.
8. 1986 (24) E.L.T. 642.
9. 1986 (25) E.L.T. 559.
10. 1987 (32) E.L.T. 53.
11. Judgment Today 1993 Volume 4 SC-126.
4. We have carefully considered the arguments advanced by both sides with reference to the miscellaneous application. This additional evidence is not in continuation of the previous opinion obtained by the party since the previous opinion did not refer to exemption Notification No. 345/86 and related to Import Trade Control aspect only as it was rightly argued by the appellant’s counsel. This is not the case where the Tribunal is requiring documents of its own to pass orders or for any sufficiency or deeming it necessary to admit the same to meet the ends of justice. But the department is insisting to take the evidence at this stage as it could not obtain during the adjudicating proceedings. The plea that the documents could not be obtained because of the urgency for adjudicating the case can hardly be a ground for admitting the additional evidence at this stage. The department had sufficient time and was equipped with huge machinery to investigate the matter in detail during the adjudicating proceedings. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in the appeal. Rule 23 of CEGAT (Procedure) Rules is an exception and that exception should be exercised sparely and judiciously. The Supreme Court held in State of U.P. v. M.L. Shrivasthava (AIR 1957 SC 912) that additional evidence should not be permitted to be produced to enable a party to fill up a lacuna, especially the party could have produced such evidence before the lower authority but failed to do so without sufficient cause for the same and same view was affirmed in the case of Jain Exports Pvt. Ltd. 1993 (66) E.L.T. 537 (SC).
5. In view of the above observations and concurring with the arguments advanced by the appellant’s counsel, the miscellaneous application filed by the department is hereby rejected.