ORDER
Harish Chander, Member (J)
1. Hindustan Platinum Pvt. Ltd. has filed an appeal being aggrieved from the order passed by the Collector of Central Excise (Appeals), Bombay. Shri S. Ganesh, the learned advocate has appeared on behalf of the appellant and pleaded that the appellant is carrying on the activity of reconditioing and repairing of “Spinnerettes” and no manufacturing activity is involved. He pleaded that due to difference of opinion, the revenue has held it to be manufacture and being not satisfied from the order passed by the Asstt. Collector, the appellant had filed an ap peal before the Collector (Appeals) and the Collector (Appeals) did not permit the ap pellant to agitate this point on the ground that it was a fresh plea and was not taken before the Asstt. Collector. He stated that in the grounds of appeal, there is also claim of benefit of Notification No. 131/81-CE dated 22nd June, 1981 and he does not press the same at this stage and pleaded that the necessary permission for the withdrawal of the same may be granted. On merits, Shri Ganesh pleaded that the Collector (Appeals) was not jus tified in refusing to hear on the fresh ground raised by him. He pleaded that the fresh ground did not require any additional evidence. It was to be based on the material al ready available on record. In support of his argument, he has referred to a judgment of the Andhra Pradesh High Court in the case of CIT v. Gangqppa Cables reported in 116 ITR 778. He also pleaded that there is another judgment of the Tribunal in the case of Cynamid India Ltd. v. Collector of Central Excise, Bombay reported in 1984 (15) ELT 186 (Tribunal) and another judgment of the Bombay High Court in the case of Controller of Estate Duty v. Bipinchandra N. Patel and Ors. reported in (1990) 186 ITR 29. He pleaded that the Collector (Appeals) was not justified in not acceding to the request of the appellant for raising this ground. On merits, he pleaded that the matter is squarely covered in favour of the appellant by a Bombay High Court decision in the case of Century Spinning and Manufacturing Company Ltd. v. Union of India reported in 1981 (8) ELT 676. He has pleaded that the appellant’s appeal be accepted. Alternatively the mat ter may be remanded. Shri S. Ganesh, the learned advocate pleaded that his main argu ment is that no manufacturing activity is involved and as such his claim under the notification is not necessary at all at this stage and it is an alternative plea.
2. Shri M.S. Arora, the learned JDR who has appeared on behalf of the respon dent, stated that neither the Assistant Collector nor the Collector (Appeals) has dis cussed the process of repairing as alleged by the appellant or manufacturing as propounded by the revenue and in the fitness of the things, the matter may be remanded to the Assistant Collector having jurisdiction. Shri M.S. Arora, the learned JDR stated that for raising the plea of non-manufacturing activity before the Collector (Appeals) for the first time and now agitated before the Tribunal in view of the judgments cited by the learned advocate, he leaves it to the discretion of the Bench.
3. We have heard both the sides and have gone through the facts and cir cumstances of the case. The appellant had taken a fresh plea before the Collector (Appeals) for the first time and no additional evidence was necessary. The issue was to be decided on the basis of the material already available on record. Hon’ble Andhra Pradesh High Court in the case of CIT v. Gangappa Cables reported in 116 ITR 778 has held as under :-
“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(l) 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(l) 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.”
This judgment of the Andhra Pradesh High Court was followed by the Bombay High Court in the case of Controller of Estate Duty v. Bipinchandra N. Patel and Ors. reported in (1990) 186 ITR 29.
4. In view of the above position, we hold that the Collector of Central Excise (Appeals) was not justified in refusing the appellant to raise the fresh plea as the first appellate forum before him. We admit the fresh plea of the appellant at the second ap pellate stage.
5. Now coming to the merits of the appeal, the learned advocate for the appel lant has cited the Bombay High Court decision in the case of Century Spinning and Manufacturing Company Ltd. v. Union of India reported in 1981 (8) ELT 676 (Bombay) and has urged before us that his case is covered by the judgment of the Bombay High Court cited by him. Para No. 9 from the said judgment is reproduced below :-
“9. There is one more aspect in this connection which must be noticed. The application submitted by the petitioners for permission to export the worn out spinnerettes specifically gives the specification and weight of the components which are sent out for repairs and the invoices, a specimen of which is produced by the petitioners on record, indicate that the goods imported are of identical weight and exact description. Merely because the worn out spinnerettes are melted for the purpose of repair, it cannot be concluded that the said spinnerettes have lost their identity.”
We have perused the orders written by the Assistant Collector as well as the Collector (Appeals). There are no details as to the repairing or manufacturing process and as such, we are not in position to express our views in this regard. Accordingly, we set aside the impugned order and remand the matter to the Assistant Collector having jurisdiction to readjudicate the same. We further order that while readjudicating the Assistant Colletor shall observe principles of natural justice and grant personal hearing to the appellant. Since there is recurring effect, we shall appreciate if he readjudicates the matter within three months from the receipt of the same.
