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TMI Blog1991 (12) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... IIT, Bombay who has given his opinion as an Author and Expert wherein he has stated categorically that the appellants products cannot be considered as thin-walled bearings and that the documents from the book entitled Engineering Materials and Metallurgy which has been relied upon by the Department does not contain any discussion or passages which are relevant for deciding whether the bearings manufactured by the appellants are thin-walled bearings or not. The objection is that the additional ground has not been raised in a separate application which is a requirement of Rule 23 and as a result the Department loses its opportunity to rebut the ground which has been raised directly in the appeal memo. The learned DR submits that if a groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case may be. Replying to the second objection, Shri Korde submits that the quantification is only consequential to the decision on classification by the Assistant Collector and it is not to be treated as a separate order against which an appeal has to be filed and further the Bombay High Court has directed the Collector to consider quantification also at the time of hearing the application for stay on the classification appeal. So there is no need for a separate appeal on quantification. The Collector gave notice of hearing for both the stay application and the main appeal and the assessees were heard on both and the final order was passed confirming the classification upheld by the Assistant Collector and also confirming the demand whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or those taken by leave of the Tribunal under these rules : Provided that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground". This Rule is in pari materia with Rule 2 of Order XLI of CPC which runs thus : Rule 2 : The appellant shall not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced or any witness should be examined or any affidavit should be filed to enable it to pass orders or for any sufficient cause, or if adjudicating authority or the appellate or provisional authority has decided the case without giving sufficient opportunity to any party to adduce evidence on the points specified by them or not specified by them, the Tribunal may, for reasons to be recorded, allow such documents to be produced or witnesses to be examined or affidavits to be filed of such evidence to be adduced. 2. The production of any document or the examination of any witness or the adducing of any evidence under sub-rule (1) may be done either before the Tribunal or before such departmental authority as the Tribunal may direct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding adducing of the additional evidence. This would mean that the appeal would have to be made part-heard and hearing would take place in a piece-meal fashion. However, when such incorporation is not objected to or whenever prayer for additional grounds is made either orally or in writing at the time of hearing of the appeal and is not objected to, the position is different and if the Bench is satisfied prima facie about its relevance/justification, it may allow the same in the interest of justice. In the instant case the other side has objected. For the reasons set out above, we are of the opinion that a separate application is called for under Rule 23. The objection of the DR on this issue is upheld. 8. The objection relating to fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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