2008 (2) TMI 746 - AT - Central Excise

Summary

Issues: Permission to raise additional grounds under Rule 41 of CESTAT Procedure Rules.

Analysis:
The appellants sought permission from the Appellate Tribunal to raise additional grounds as delineated in grounds 'J' & 'K' through a miscellaneous application filed under Rule 41 of CESTAT Procedure Rules. The Assistant Commissioner filed objections but did not raise any objection to the appellants raising these grounds. The learned Senior Counsel argued that the additional grounds were necessitated due to an amendment to the Finance Act, adding mining activity as another taxable category. Ground 'J' asserted that washing coal for KPTCL constituted an activity related to mining of minerals, thus taxable under Section 65 (105) and Section (zzzy) of the Finance Act introduced from 1-6-2007. Ground 'K' further amplified this submission and cited various judgments in support. The Senior Counsel contended that these were legal grounds and should be permitted in the interest of justice.

The learned SDR argued that these were questions of fact that should have been raised earlier and not questions of law to be raised at this stage. In response, the Senior Counsel emphasized that the amendment to the Finance Act necessitated the additional grounds to be raised and cited precedents supporting the allowance of additional grounds in such circumstances. The Tribunal, after considering the submissions and the Assistant Commissioner's reply, noted that no objection was raised to permitting the appellants to raise additional grounds. Given that the additional grounds stemmed from the Finance Act amendment and were legal in nature, the Tribunal allowed the appellants to raise them. The appellants were directed to file a fresh form ST-5 along with the grounds before the next hearing scheduled for 27-2-2008, with the Registry instructed to issue the Order out-of-turn for further proceedings.