1994 (1) TMI 167 - AT - Central Excise

Summary

Issues:
Entitlement to refund of duty on Calcined Magnesite known as Ramming Mass for a specific period. Consideration of Notification 213/86 for duty liability at 12% ad valorem. Proper adjudication of new grounds raised in the appeal.

Analysis:

The appeal before the Appellate Tribunal CEGAT, MADRAS involved the issue of the appellant's entitlement to a refund of duty amounting to Rs. 12,468 paid on Calcined Magnesite known as Ramming Mass for the period from 1-3-1986 to 31-3-1986. The appellant had initially classified the goods under Heading 2505.00 of the Central Excise Tariff, 1985, which was approved by the proper officer. However, a show cause notice was later issued seeking to revise the classification under Heading 3801.90, resulting in a differential duty demand. The appellant contended that the refund was already granted for the same period, and the Department was attempting to reopen a concluded issue. Upon review of records, it was clarified that the refund did not pertain to the period in question, leading the appellant to withdraw certain contentions.

Furthermore, the appellant argued that even if duty liability existed, it should be at 12% ad valorem based on Central Excise Notification 213/86 dated 25-3-1986. Despite raising a specific ground on this issue before the lower appellate authority, the plea was rejected without consideration, citing it as a new ground not previously raised before the adjudicating authority. The appellant challenged this finding, asserting that the rejection was untenable in law.

The learned DR submitted that since the issue of Notification 213/86 was raised before the lower appellate authority, the Tribunal could remit the matter if deemed necessary in the interest of justice. Upon examination, the Tribunal noted that while the plea regarding the notification was not presented before the adjudicating authority, the appellant had the right to raise it before the appellate authority. The Tribunal disagreed with the lower appellate authority's decision to dismiss the new ground solely based on its novelty and lack of prior mention before the adjudicating authority. Consequently, the Tribunal set aside the impugned order and remanded the matter to the Collector (Appeals) for a proper consideration of the Notification No. 213/86 in the appellant's case after affording the appellant an opportunity to be heard, emphasizing the necessity of addressing the legal question raised in the grounds of appeal in accordance with the law.