2016 (1) TMI 1183 - AT - Central Excise

Without prejudice to the other submission made in the appeals, it is submitted that the applicant has not recovered and duty from the customers. Therefore, the sale price of the resultant materials should be treated as cum duty price - Explanation to Section 4 of the Central Excise Act - Circular DOF No. 384/1/2003-TRU dated 28.2.2003 - Held that - It is pertinent to note that the Hon ble Supreme Court in the case of CCE vs. Dempo Engineering Works Ltd. 2015 (4) TMI 961 - SUPREME COURT , held that Tribunal was not agreeing with the order of the Commissioner, the order of the Tribunal should have been a speaking order dealing with the reasoning given by the Commissioner and stating as to why the said reasoning was faulty. - issue as to whether the product is marketable or not was not even raised by the respondent in reply to the show cause notice nor was it argued before the Commissioner and therefore on that ground the Tribunal could not have allowed the appeal. We find that the judgment of the Hon ble Supreme Court cited above is applicable in the facts of the present case and in our considered opinion, the new ground which the applicant is seeking to raise cannot be raised at this stage as the ground is not purely legal in nature. Consequently, we do not find any merit in the applications moved by the applicant/appellant and we dismiss the same.

Summary

Issues involved:
Permission to raise additional ground in appeal

Analysis:
The judgment by the Appellate Tribunal CESTAT Mumbai pertains to two miscellaneous applications filed by the applicant/appellant seeking permission to introduce an additional ground not initially included in the appeal. The applicant argued that the sale price of resultant materials should be treated as cum duty price as they had not recovered any duty from customers. The applicant cited relevant provisions of the Central Excise Act, Circular DOF, and several judicial precedents to support their argument. On the contrary, the learned AR opposed the additional grounds citing various legal judgments that emphasized the importance of raising all grounds at the appropriate stages of litigation. The AR highlighted that the new grounds were never raised before any lower authority or in previous proceedings. The Tribunal considered the arguments presented by both parties and reviewed the judgments cited.

The Tribunal referred to a judgment by the Hon'ble Supreme Court which stated that new issues not raised earlier in the proceedings cannot be introduced at a later stage. The Tribunal concluded that the new ground proposed by the applicant was not purely legal in nature and, therefore, could not be allowed at that stage. Consequently, the Tribunal dismissed the applications seeking permission to raise the additional ground in the appeal. The appeals were scheduled to be heard on a specific date following this decision.