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TMI Blog2002 (9) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Commissioner (Appeals), but if the Commissioner (Appeals) failed to consider the same, whether CEGAT can grant such relief to the party, or otherwise? 2. At the time of hearing of the cross-objection filed by the party, if he prayed for the relief in written submissions, before the Commissioner (Appeals), but the Commissioner (Appeals) failed to consider the written submissions, whether CEGAT can grant such relief prayed in the written submissions to the party, or otherwise? 3. If the Assessing Officer failed to extend the benefit of exemption Notification, which the party claimed later at the Appellate stage, when he came to know, whether that benefit is available to the party or otherwise? 4. Written su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the appropriate heading. The Revenue filed an appeal before the Commissioner (Appeals) challenging the order of adjudication dropping the demand on stores. The applicant-assessee filed cross-objections before Commissioner (Appeals) in relation to the demand to the extent of ₹ 35,458.81. The Commissioner (Appeals) dismissed the appeal filed by the Revenue and also the cross-objections filed by the assessee. 4. The assessee preferred an appeal before the Customs, Excise Gold (Control) Appellate Tribunal, New Delhi which came to be registered as Appeal No. C/276/2002-B [2002 (150) E.L.T. 333 (Tri.)]. The principal grievance raised by the assessee before the Tribunal was that in the written submissions filed before the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ru, learned advocate for the applicant, submitted that the question of law arose as to whether it was open to a party to claim benefit of exemption notification, if the same was claimed during proceedings pending before an appellate authority. Mr. D.N. Patel, learned advocate appearing on behalf of the respondent raised a preliminary objection that the entire case of the applicant-assessee was misconceived as there was no provision for filing cross-objection before the Commissioner (Appeals), and in absence of such a right being available to the assessee, there is no question of the assessee raising any dispute before the Commissioner (Appeals). The learned advocate for the applicant, Mr. Maru invited attention to the provision of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xation matters, there is no estoppel in law against a party and merely because the party had accepted a certain position and treated a portion of item falling within one entry, the classification accepted under some misapprehension cannot bind the party, once the party becomes aware of the correct legal position. It was further contented that notifications issued under Section 25 of the Act are binding on the assessing authority and cannot be ignored while levying the duty and any such assessment, which ignores notification issued under Section 25 of the Act, would be an illegal collection rendering the assessment violative of Article 265 of the Constitution. It was further contended that raising of an additional ground is always permissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to raise the said ground or plea during the course of assessment. 9. In the present case, as the facts on record go to show, the assessment in relation to vessel had been finalised on 14th November, 1990. The assessee had duly paid up the duty without demur on 16th November, 1990. The said assessment had not been challenged in any manner whatsoever. The Superintendent of Customs issued show cause notice on 7th May, 1991 proposing recovery of duty in respect of movable gears, stores and bunkers. The adjudication order dated 29th February, 1998 dropped the demand of duty in relation to movable gears and stores while retaining demand of duty relating to bunker, fuel and oil. Therefore, there was no occasion for the assessee to raise the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee had merely raised a contention in writing in support of the cross-objection which did not contain any ground as regards the assessment of vessel which had already become final on 14th November, 1990. 10. The position of law is well settled that an assessing officer s jurisdiction in cases of reassessment is confined only to such income which has escaped tax or has been underassessed and does not extend to revising, reopening or reconsidering the whole assessment or permitting the assessee to agitate questions which have been decided in the original assessment proceedings. Claims, which have been disallowed in the original assessment, cannot be permitted to be reagitated on the assessment being reopened for bringing to tax certain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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