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TMI Blog2017 (1) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... admitting additional evidence before the Commissioner (Appeals) was built into the Rule. The appellate authority is, therefore, required to apply his mind as to whether the plea of the appellant to admit additional evidence falls within the aforementioned four exceptions or not and then admit the additional/fresh evidence. Whereas, the Commissioner (Appeals) has proceeded as if there is an absolute bar contained in Rule 5 from entertaining any such additional evidence. Clearly, the approach adopted by the Commissioner of Appeals is erroneous. The anxiety is to confine the authorities concerned strictly to the requirements contained in the statute while making assessments of taxes/duties while at the same time allow the person concerned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the importer and confiscated the goods under Section 111 of the Act. The differential amount of duty was so insignificant, as it involved only ₹ 6.650/-. Taking into consideration the fact that the importer on his own has requested for amending the Bill of Entry and that too before the clearance of the goods, there was, in fact, no necessity for confiscating the goods. Hence, agreeing with the contention of the importer, the Commissioner of Customs (Appeals) passed an order on 20.07.2004, allowing the appeal and setting aside the order in original, dated 10.06.2004. On 01.02.2005, the importer has filed a claim for refund under Section 27 of the Act, claiming refund of the duty paid in excess, in terms of Customs notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod from August,2004, to January,2006, have been produced to show that there is no variation in the price, thus, evidencing that the incidence of duty has not been truly passed on to their customers. In spite of such quality evidence, what the Appellate Commissioner did was to reject the appeal on the ground that Rule 5 of the Customs (Appeals) Rules,1982, does not permit him to look into any such additional evidence and he also drew inspiration from the judgment of the Tribunal in Shree Ram Industries v. Commissioner of Central Excise, 1999 (113) E.L.T.267 (Tribunal), wherein, dealing with additional evidence, the Tribunal held that the said evidence should be produced earlier by placing the books of accounts before the original authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the said authority has been allowed a reasonable opportunity - (a) to examine the evidence or documents or to cross-examine any witness produced by the appellant; or (b) to produce any evidence or any witness in rebuttal of the evidence produced by the appellant under sub-rule (1). (4) Nothing contained in this rule shall affect the powers of the [Commissioner] (Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal." 4. From a reading of the above Rules, it is hardly in doubt that the appellant was not entitled to produce before the Commissioner of Appeals any new evidence other than the evidence already produced by him before the adjudicating authority. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for four different kinds of exceptions. In the instant case, the importer has been urging that because of a technical snag, he could not retrieve in time necessary information from the computer system to enable him place it before the adjudicating authority. This apart, when sales invoices over a long period of time have been placed before the Appellate Commissioner to demonstrate that the incidence of duty paid has, in fact, not been passed on to its customers, such a piece of evidence is a relevant one for adjudicating the claim for refund, made by the importer. There appears to be sufficient cause that prevented the importer from placing the necessary material before the Appellate Commissioner. 7. In that view of the matter, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 187 ITR 688. Again, dealing with Section 254 of the Income Tax Act, the Supreme Court, in National Thermal Power Co. Ltd. v. Commissioner of Income Tax, reported in (1998) 229 ITR 383, has held as under : "Under Section 254 of the Income-tax Act, the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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