ORDER
S.L. Peeran, Member (J)
1. All the above appeals are on the same issue and have been clubbed together for disposal as per law.
2. The Revenue appeal is E/2878/90-D and all the other appeals are those of different assessees.
3. The Revenue have filed one common Misc. application No. E/Misc.1021/90-D in their appeal as well as the following appeals E/1964/83; E/323/85-D; E/2372/90-D and E/2878/90-D.
4. The Revenue have likewise filed Misc. No. 1022/91-D in the following appeals of assessees No. E/413 to 421/90-D.
5. (i) In Misc. 1021/91-D, Misc. 1022/91-D, the Revenue have prayed for permitting them to raise additional grounds and additional evidence.
(ii) It is stated by them in para heading ‘Additional Evidence’, thus, that while going through the records of the case, they have observed that neither order-in-original nor the appellants have placed on record, any catalogue of the compressive shrinkage Range Machine, also known as Zero Zero Machine. They contended that the technical opinion is also very important and as such, it was found necessary to consult the Ah-medabad Textile Industry’s Research Association (ATIRA) and hence their technical opinion be taken on record at the time of hearing of the case. It is also contended that relevant copies of catalogues of the machines as well as comparable machines manufactured by other parties are also produced and Revenue wants to introduce the same now for the consideration.
(iii) In the para heading Additional evidence, the Revenue has stated that the case of M/s. Prakash Calender Factory E/A No. 2878/90-D, has been decided in favour of the party and the Revenue has filed their appeal against the said order. It is contended that any notification which is issued, takes effect from the date of issue unless a specific mention is made regarding its retrospective effect and thus it is contended that Notification No. 213/88, dated 15-6-1988 does not contain any such clause and it cannot be artificially introduced in the notification.
6. We have heard Smt. Vijay Zutshi, learned Jt. CDR for the Revenue and Shri V. Lakshmi Kumaran and Shri R.S. Dinkar, learned Advocates for the parties. Smt. Zutshi, arguing on the Misc. application, submitted that the Additional evidence and Additional grounds raised in the Misc. application are pertaining to the technical nature of the machine in question. The documents which are now being brought in as additional evidence, pertain to extract from two test books from Textiles and also pertaining to the technical leaflet of the machine in question. She stated that another machine manufactured by a Japanese firm and the details of that machinery Guide is more in a nature of contemporaneous evidence. This piece of evidence would only throw light on the nature of the machine in question. She submitted that the machine in question has been designed and manufactured on the basis of Japanese machine and, therefore, it is necessary piece of evidence, which is only technical in nature. She submitted that these evidence and the additional ground raised are mere technical and legal in nature and its introduction at this stage, would not cause any hardship or injury to the party. She contended that the opinion given by ATIRA is mere clarificatory in nature and the same can be countered by the assessee. She contended that the evidence if it is considered, would not cause any hardship but it would only assist the Bench in considering the controversy in question, in more particular to the Notification No. 253/82-C.E.
7. Shri Lakshmi Kumaran, learned advocate submitted that the Revenue cannot file the Misc. application to introduce addl. evidence and additional ground in the assessee’s appeal and, therefore, the Misc. application filed in the assessee’s appeal is misconceived. He contended that these documents are being produced at this stage by the Revenue with a view to fill in the lacunae in the evidence. He contended that it is well settled that evidence cannot be introduced at this late stage to fill in the lacunae. However, he contended that the extract of text books which the Revenue wants to rely, can be admitted as it is only a literature. He seriously objected to the opinion of ATIRA being brought in at this stage, as the opinion was taken after the adjudication. He also objected to the technical opinion of the Japanese machine being brought on record. However, he did not object to the production of the catalogue pertaining to the machine in question. He attempted to show from the catalogue of Japanese machine that the same did not deal with shrinkage and hence, introduction of such a document would be in the nature of making out a new case.
8. Shri Dinkar, advocate, stated that introduction of the evidence at this stage, would change the scope of inquiry and in this context, he relied on the ruling rendered by the Bombay High Court in the case of Commissioner of Income-tax v. T.M. Bhoomreddy [1958 (33) ITR 82] and Ganesh Rolling Mills v. Union of India [1990 (45) E.L.T. 403] .
9. We have carefully considered the submissions made by both the sides and have also perused the grounds and the nature of documents which are said to be in the nature of additional evidence and additional grounds. The documents which the department wants to rely, are merely in the nature of technical literature and the said technical literature cannot be considered to be as in the nature of additional evidence as it is well-settled that technical literature in the form of extract of books, dictionaries, encyclopedia can always be looked into even at the time of arguments. Both the sides have not opposed the production of catalogue and technical leaflet pertaining to Dhall’s Precontrolled Compressive Shrinking Range. Therefore, there is no question of rejecting this leaflet. A serious objection raised in this case is pertaining to the leaflet of Japanese machine which has a title “Japan Textile Processing Machinery Guide”. This is also in the nature of a technical literature. This is being produced more with a view to clarify and show the similarity with the machine in question. Therefore, it cannot be considered as a new evidence so as to prejudice the assessee. The technical opinion of ATIRA produced by the department is in the nature of clarification with regard to the processes of compressive shrinkage range. There is no specific opinion pertaining to the machine in question. Since the same is in the nature of technical clarification, there is no harm in the same being looked into as the department is not relying solely to base their goods on this piece of this evidence. The additional ground which is taken by the Revenue is mere in the nature of pleading on a point of law and not a new charge or allegation. The same can be permitted and no prejudice would be caused to the assessee. Therefore, the Misc. application pertaining to the technical literature and the legal ground in the Revenue’s Misc. Application No. 1020/91/-D is allowed.
10. As regards the Misc. Application No.1022/91-D is concerned, it has to be stated that this Misc. Application has been filed in the assessee’s appeal. Therefore, the question of filing a Misc. application in assessee’s appeal does not arise. As the documents are pertaining to technical literature, no prejudice would be caused to the assessee if the same are referred to.
11. On matters pertaining to similar issues, the Hon’ble Supreme Court had occasion to consider on the aspect pertaining to raising additional grounds as in the case of Jute Corporation of India Ltd. v. Commissioner of Income-tax as reported in 1991 (51) E.L.T. 176. The Supreme Court has held that additional grounds can be raised and permission granted if the assessee is satisfied that the ground raised was bonafide and that the same could be raised earlier for good reasons. The Madras High Court in the case of Deputy Commissioner (CT), Coimbatore Division v. TVL Pankaja Mills [1989 (43) E.L.T. 259] has laid down that grounds taken during the course of arguments are to be considered by the Appellate authority even if not taken in the Memorandum of appeal. It has been further held that the basic principles of natural justice required a court of a quasi-judicial authority to apply its mind to the arguments advanced and points raised during the course of arguments. The Court has further held that the Appellate authority is competent to remand a matter to the lower authority and direct for looking into new documents that are produced; and also remand the matter on grounds which are not specifically taken in the grounds of appeal or before the lower authorities.
12. The Tribunal in the case of C.C.E. v. Kanoria Chemicals & Industries Ltd. reported in 1987 (29) E.L.T. 681 has also held relying on the ruling rendered in the case of Syanamid India Ltd. [1984 (15) E.L.T. 186] that it would not be in the interest of justice or conduce to a proper disposal of the question of correct classification of the goods if the appellants are prevented from raising a new ground so long as that ground is relevant to the question of classification. The Tribunal has also relied on the ruling rendered by the Supreme Court in the case of Commissioner of Income-tax, Madras v. Mahalakshmi Textile Mills Ltd. [1967 3 SCR 957]. The case laws relied on by the learned Advocate pertain to those aspects which raise a fresh ground and in which no allegations have been raised and inquiry being done or which were in the nature of filling in the gap. Therefore, the said rulings do not apply to the facts of the present case.
As a result, the applications are allowed.
The registry shall list the cases for final hearing.