2008 (11) TMI 239 - AT - Central Excise

Additional Grounds New Plea Legal issue department submits that the case was made out against the appellants 33 years back and no such plea was ever raised before adjudicating authority. He further submits that the decision relied upon by the appellants were not available during the relevant period having been rendered subsequently, the benefit of the same should not be extended to the applicant held that - The law declared by the Courts is required to be considered as a correct law even for the period prior to such declaration and it has to be held as if the same was the law for all relevant times. We further find that inasmuch as the said law declared were not available during the relevant time, the appellants were not found to rely upon the same. Further, the above grounds so raised by the appellants are only legal grounds and as such are required to be taken in the application. additional grounds allowed.

Summary

Issues:
1. Duty confirmed against the appellant based on clandestine manufacture and clearance of enameled copper and aluminium wires.
2. Whether the process of enameling bare wires amounts to manufacture.
3. Application filed under Rule 10 of CESTAT Procedure Rules, 1982 for raising additional legal grounds not taken before Commissioner.
4. Consideration of judgments by Hon'ble Supreme Court and Hon'ble Bombay High Court in the case.

Analysis:
1. The appellant contested the duty confirmed against them and penalties imposed for clandestine manufacture and clearance of enameled copper and aluminium wires. The appellant's representative argued that even if the Revenue's case is accepted, the activity of enameling bare wires does not amount to manufacture based on various decisions of the Hon'ble Supreme Court and Hon'ble Bombay High Court. An application under Rule 10 of CESTAT Procedure Rules, 1982 was submitted to raise additional legal grounds not previously presented before the Commissioner.

2. The appellant's advocate cited judgments, including Collector of C. Ex. v. Popular Cotton Covering Works, Shakti Insulated Wires P. Ltd v. UOI, and National Insulated Cable Co. v. Collector of C. Ex., to support the argument that enameling bare wires does not constitute manufacture. The respondent's representative contended that the case was established against the appellants long ago, and the decisions relied upon were not available during the relevant period. However, the Tribunal found merit in the appellant's argument, stating that the law declared by the Courts should be considered correct even for prior periods and allowed the Miscellaneous Application for raising additional legal grounds.

3. The Tribunal emphasized that the decisions of the Hon'ble Supreme Court and Hon'ble Bombay High Court were not before the adjudicating authority, necessitating a reconsideration of the matter in light of these judgments. The impugned order was set aside, and the case was remanded to the Commissioner (Appeals) for fresh adjudication, considering the plea of non-manufacture raised by the appellant. The appellants were granted the opportunity to contest the case afresh before the adjudicating authority, with a clarification that no decision on the merits of the case was made by the Tribunal.