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TMI Blog1991 (10) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... This decision has been afforded on the ground that the said Notification provides for set off and that is not in the form of credit. Hence the credit is barred under Rule 51H(2). 3. The decision for allowing credit of other two amounts of Rs. 5,06,212.66 and Rs. 24,049.80 had been challenged on the ground that the Collector while holding that the onus is on the department to prove the non-duty paid nature of goods for disallowingthe facility of deemed credit had missed the point that the goods in question had been supplied to them by M/s. I.O.C. Ltd. during the period February 1984 to 1st March, 1985 and hence even if the inputs were duty paid, duty had been paid prior to 31st Jan., 1986. Hence Rule 57H(2) is attracted and no question of credit whether actual or deemed credit arises at all. It is also stated in the appeal that regarding inclusion of value of inputs in the assessable value of finished goods, it has not been established by documentary evidence or otherwise and nothing has been stated by Collector (Appeals) in his findings how he came to the conclusion that the value of the said raw material (inputs) in question had actually been included in assessable value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime when the notice was issued Rule 57-1 did not have any time limit clause. This was inserted therein only with the amendment dated 6-10-1988. Hence the notice was not time barred. Further, there is no requirement that the notice under Rule 57-1 had to be issued by the Collector whether before or after its amendment. Such a requirement is only under Section 11A which, as he had pointed out was not applicable in the present case. He, therefore, contended that the plea of jurisdiction and limitation, even if permitted to be agitated by the respondents would not lead to the conclusion pointed out by them. He, therefore, pleaded that the department s appeal be allowed. 7. Shri Bagaria replied to the points raised by Shri Biswas. He stated that he would, with the fullest respect, submit that the judgment of Gujarat High Court had been given by them when the relevant judgment of the Supreme Court in J.K. Spinning Weaving Mills Ltd. v. Union of India, 1987 (32) E.L.T. 234 SC = 1989 (23) E.C.R. 178 SC had not been brought to their notice and accordingly had not been considered by them. In this, the applicability of Section 11A to regulate short levy arising from the application of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Falcon Tyres Ltd..) CEGAT. 6.1989 (42) E.L.T. 286 (C. C.E. v. Consolidated Steel Alloys Ltd.) CEGAT. 7.1988 (34) E.L.T. 442 (Gujarat State Fertilizer Co. Ltd. v. U.O.I.) Gujarat High Court. 8.1989 (40) E.L.T. 180 (H. Guru Instruments Pvt. Ltd. v. C.C.E.) CEGAT. 9.1987 (31) E.L.T. 770 (Punalur Paper Mills Ltd. v. C.C.) CEGAT. 10.1988 (37) E.L.T. 239 (Kapil Brothers v. C.C.E.) CEGAT. 11.1989 (40) E.L.T. 276 (C.C.E. v. Chemphar Drugs Liniments) Supreme Court. 12.1989 (43) E.L.T. 195 (Padmini Products v. C.C.E.) Supreme Court. 13.1989 (41) E.L.T. 267 (Lucas TV Ltd. v. C.C.E.) CEGAT. 14.1989 (41) E.L.T. 322 (C. C.E. v. Hiper) CEGAT. 15.1989 (39) E.L.T. 65 (C.C.E. v. Steel Corporation Of Punjab) CEGAT. 16.1986 (23) E.L.T. 132 (South India Alloy Industries v. C.C.E.) CEGAT. 17.1987 (30) E.L.T. 454 (Herschel Rubber Pvt. Ltd. v. C.C.E.) CEGAT. 18.1989 (43) E.L.T. 449 (C.C.E. v. Ganesh Sugar Mills Ltd.) CEGAT. 19.1989 (44) E.L.T. 752 (Essco Sanitations v. C.C.E.) CEGAT. 20.1989 (42) E.L.T. 251 (Corrugated Board India Pvt. Ltd. v. C.C.E.) CEGAT. 8. Apart from these points of law on jurisdiction and limitation, Shri Bagaria pointed out that the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being a set off Notification and not one granting credit of duty has got no merit. 10. Coming to the next point relating to allowing the appeal in respect of credits of Rs. 5,06,212.66 and Rs. 24,049.80 we find that these deemed credits were disallowed by the Assistant Collector on the ground that the concerned inputs were exempted from duty under Notification No. 208/83 and so it was not free from doubt as to whether the goods were duty paid or not. The Collector (Appeals) has allowed the appeal accepting the respondents plea that Notification No. 208/83 is a conditional Notification and an item covered thereunder cannot be said to be clearly recognisable as non-duty paid or chargeable to nil rate of duty and the onus to prove the non-duty paid nature of goods is on the department and that no definite finding had been given by the Assistant Collector about the goods being non-duty paid. The Collector (Appeals) had rightly come to the conclusion that he had. The Assistant Collector had taken the stand that it was not free from doubt as to whether the goods were duty paid or not. This is not what the deemed credit Order had laid down. Deemed credit would not be admissible if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken correctly. 11. We take note of the objection taken by the learned Counsel, Shri Bagaria that the contention that the inputs in question had been supplied prior to January, 1986 and, therefore, no MODVAT credit is permissible in view of Rule 57H(2) had never been considered by the Assistant Collector. Hence, such a question was not there before the Collector (Appeals) either. Only now at the appeal stage, the point is raised before the Tribunal. It is submitted by him that the date of payment of duty is a question of fact and no basis for the stand that duty had been paid before 31-1-1986 had been submitted. It has been, therefore, pleaded by him that this new point of fact should not be allowed to be raised in the appeal. 12. We have considered this submission. We find that in Hindustan Tyres Pvt. Ltd. v. Collector of Central Excise, Bombay, 1988 (34) E.L.T. 324, the Tribunal had held that a fresh plea can always be taken before the Tribunal provided there is material already on record. Again in Cable House v. Collector of Central Excise, reported in 1989 (39) E.L.T. 127 (Tri.) = 1989 (22) E.C.R. 393 the Tribunal had held that fresh grounds not involving further investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s :- The Appellate Tribunal disposing of an appeal under the I.T. Act has got the power to allow the assessce to put forward a new claim, notwithstanding the fact that such a claim was not raised by him before the I.T.O. or the A.A.C., provided there is sufficient material on record to allow such a claim. The assessee, for the first time, raised a plea in second appeal before the Appellate Tribunal that the expenditure incurred by the assessee before it went into commercial production was an admissible deduction for the purpose of Section 80.1(1) of the I.T. Act. The revenue resisted the claim on the ground that the said claim having not been put forward by the assessee before the I.T.O. or the A.A.C., it could not be raised in second appeal. The Tribunal held that the directors report accompanied by balance-sheet and profit and loss account and other statements were filed by the assessee before the I.T.O. and practically all the details for allowing a claim under Section 80.1(1) of the Act were on record and hence it was open to the Tribunal to allow such a claim. On a reference : Held, that the Tribunal was correct in allowing the claim of the assessee as there was materi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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