9911796707
TMI Blog1988 (8) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... so they did not say so. The process of manufacture was also not stated before the Assistant Collector. Shri Doiphode has opposed the introduction of this new evidence at this stage. In support of his objection he has cited the authority of the Supreme Court judgment in the case of State of U.P. v. Manbodhan Lal Srivastava, reported in AIR 1957 S.C. 912. In the said judgment the Hon ble Supreme Court observed that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case at the proper stage, and to fill in gaps. It was also held therein that the Supreme Court would not permit additional evidence to be placed in appeal when there was sufficient opportunity for the appellant to place all the relevant matters before the High Court itself. Shri Pochkhanawalla has confirmed that the appellants did not raise the aforesaid point before the lower authorities. He has said that the Appeal before this Tribunal was filed on 19-2-1985 and the affidavit has been filed now because of subsequent decisions. We have considered this application and the arguments of both sides. Admittedly, the point that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, therefore, disallowed by the Collector. Hence, the present appeal. 3. During the hearing before us the learned advocate has argued that the show cause notice dated 11-2-1981 denying the exemption under Notification No. 119/75-C.E. was issued without assigning any reason. It was, therefore, invalid in terms of the ratio of Madras High Court judgment reported in 1983 E.L.T. 322 (Madras) in the case of S. Lakshmichand v. Government of India, in which it was held that there should be specific allegation in the show cause notice. He has also stated that in the reply to show cause notice, the appellants requested to disclose the reasons for denying the benefit of the Notification, but the Assistant Collector did not disclose the reasons. It was in the order-in-original that the reasons were explained. The learned advocate has argued that the order cannot go beyond the show cause notice. 4. On merit of the case, the learned advocate has argued that job work has been defined in the explanation of the notification, which does not say that the raw materials cannot undergo change, that the finished product should fall under a different Tariff Item or that the benefit of job work noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal. The reasons were called for by the appellants in reaction of Assistant Collector s order denying the benefit of Notification No. 119/75-C.E. in the classification list. Substance of the allegation was understood by the appellants and they replied to it. Now they cannot raise the point that the show cause notice was vague and without any reasons. In support of this argument, Shri Doiphode has relied on this Tribunal s decision in Astra Pharmaceuticals Pvt. Ltd. v. Collector of Central Excise, Chandigarh, reported 1987 (32) E.L.T. 720 (Tribunal). On merit of the case, he has relied on the Larger Bench decision of this Tribunal in the case of National Organic and Chemicals Industries (Supra), which covers the present case in the Department s favour. He has distinguished the facts of the present case from those covered by the Tribunal s decision reported in 1986 (24) E.L.T. 113 (Tribunal). He has stated that in the said case the identity of brass rod was not lost in the forged nuts and valves which were the finished products. In the present case, the identity of the raw materials is lost. 6. We have considered the records of the case and the arguments of both sides. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the explanation to the Notification No. 119/75-C.E. refer to those processes which are incidental or ancillary to the completion of the manufactured product, and not to the usual activities that are normally understood to comprise of the activity of manufacture. Therefore, to enable a person to claim the benefit of this Notification, he will have to receive an article from the customer and subject the same to a manufacturing process, in the way of a process incidental or ancillary to the completion of the manufactured product and then return the said article to the customer, recovering from the customer the charges for such activity only. This interpretation of the notification would also satisfy the requirement that the job worker will have to return to the customer that article which he had received from the customer for subjecting it to the necessary manufacturing process. It was also held by the Larger Bench that the process applied by the job worker should not be in the nature of manufacture in its primary sense and the resultant product should not be so completely distinct as to lose the original identity itself. In the present case, the process of manufacture applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parts of the reply spelt out their case why in their opinion they were entitled to the said benefits. They had referred to decisions of Courts also in support of that contention. In the course of the hearing before the Assistant Collector they had put forward their case with reference to the above submissions. All these would only show that they had understood why the Department had rejected the claim for benefit under notification and were, therefore, putting forward their own case as to the eligibility. 12. Under his order the Assistant Collector confirmed the demand denying eligibility under the notification. One of the contentions of Shri D.P. Pochkhanawalla was that in this order the Assistant Collector had brought in this concept of a chemical change having taken place in the process undertaken by the appellants and that by doing so the Assistant Collector gravely erred since the appellants were not even put on notice that the Assistant Collector proposed to take such a view and in the absence thereof the appellants could not put forward their own case as to why the conclusion of the Assistant Collector was wrong. The contentions was that thus the appellants were denied a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders cannot be set aside, for the only reason that the show cause notice did not specifically spell out the reasons for the denial of benefit under the notification. 15. So far as the additional evidence is concerned, I am satisfied that it need not be admitted. If the decision of the Larger Bench of this Tribunal in the case of NOCIL is to be followed that would mean that the eligibility for benefit under Notification No. 119/75 would depend on the question whether the process applied to the material received from the customer was in the nature of the primary process of manufacture or by way of an incidental or ancillary process for the completion of a manufactured product. In that view it would not matter whether the change that takes place was a purely physical change or chemical change. If so it will be wholly unnecessary to consider the facts stated in the affidavit produced as additional evidence. In that view I am of the opinion that for that very reason the introduction of the additional evidence has to be denied. 16. As earlier stated I agree with the order of Shri Mandal that the appeal has to be dismissed and accordingly concur with the same. 17. [Order per : G. Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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