ORDER
Harish Chander, Vice President
1. By the present miscellaneous application the applicants have made a prayer for raising the following ground of appeal :-
“(g) The demand is hit by the time bar prescribed under Section 11-A of the Act. While the show cause notice is dated 5-1-1989, the demand is for the period 1-1-1987 to 5-11-1988. In terms of Section 11-A of the Act, the demand for duty could not have been made for the past period beyond six months. The demand for the period prior to 5-7-1988 would be hit by time bar.”
2. Shri R.K. Habbu, the learned advocate has appeared on behalf of the applicants and pleaded that the additional ground of appeal raised by the applicants at this stage is purely of a legal nature and the same can be raised at any time. He pleaded that the applicants were prevented by sufficient cause in not raising the same earlier bona fidely. He further argued that this ground of appeal (g) is clarificatory of ground of appeal (f) where the appellant has disputed the notification and the extended period of limitation. In support of his argument, he has referred to a judgment of the Supreme Court in the case of Assistant Collector of Central Excise v. Ramdev Tobacco Company reported in 1991 (51) ELT 631 where the Hon’ble Supreme Court had held that a pure question of law can be entertained at appellate stage even if not raised before the lower court.
2A. Shri M.S. Arora, the learned JDR who has appeared on behalf of the respondent, does not object to the raising of the same in view of the earlier decision of the Tribunal and he leaves it to the discretion of the Bench.
3. We have heard both the sides and have gone through the facts and circumstances of the case. The proposed ground of appeal is purely of a legal nature. Hon’ble Andhra Pradesh High Court in the case of Commissioner of Income-tax v. Gangappa Cables Ltd. reported in (1979) 116 ITR 778 had held that the appellant can raise additional ground of appeal before the Tribunal for the first time on the basis of the material already available on record. Relevant extract from the said judgment is reproduced below: –
“The Appellate Tribunal disposing of an appeal under the I.T. Act has got the power to allow the assessee to put forward a new claim, notwithstanding the fact that such a claim was not raised by him before the ITO or the AAC, provided there is sufficient material On record to allow such a claim.
The Assessee, for the first time, raised a plea in second appeal before the Appellate Tribunal that the expenditure incurred by the assessee before it went into commercial production was an admissible deduction for the purpose of Section 80J(1) of the I.T. Act. The revenue resisted the claim on the ground that the said claim having not been put forward by the assessee before the ITO or the AAC, it could not be raised in second appeal. The Tribunal held that the directors’ report accompanied by balance-sheet and profit and loss account and other statements were filed by the assessee before the ITO and practically all the details for allowing a claim under Section 80J(1) of the Act were on record and hence it was open to the Tribunal to allow such a claim. On a reference :
Held, that the Tribunal was correct in allowing the claim of the assessee as there was material on record for allowing the same.”
In the matter before us, there is a prayer by the appellant for raising any additional ground of appeal. Shri Habbu, the learned advocate had relied on a recent judgment of the Supreme Court in the case of Assistant Collector of Central Excise v. Ramdev Tobacco Company reported in 1991 (51) ELT 631 (SC). Para No. 10 from the said judgment is reproduced below :-
“10. Mr. Nambiar, the learned counsel for the respondents strongly argued that we should not entertain the submission based on the ejusdem generis rule since it was not raised before the High Court. That indeed is true but being a pure question of law we have thought it fit to entertain the same. We, therefore, do not entertain this objection.”
Keeping in view the legal position discussed above, we are of the view that it is a fit case where the Tribunal should grant permission for the raising of the additional ground of appeal. Accordingly, we order that the following ground of appeal (g) should be inserted as under :-
“(g) The demand is hit by the time bar prescribed under Section 11-A of the Act. While the show cause notice is dated 5-1-1989, the demand is for the period 1-1-1987 to 5-11-1988. In terms of Section 11-A of the Act, the demand for duty could not have been made for the past period beyond six months. The demand for the period prior to 5-7-1988 would be hit by time bar.”
4. In the result, the miscellaneous application is allowed.