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TMI Blog2017 (11) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, it is a duty of the Tribunal to give sufficient opportunity to the parties to the Appeal of being heard on the said ground. If the Appellant wants to urge a ground, which is not taken in the Memorandum of Appeal, he is entitled to do so by seeking a leave of the Tribunal. While dealing with such an Application made for seeking leave under Rule 10 of the Procedure Rules, the Appellate Tribunal is required to apply its mind to a limited issue whether leave is required to be granted. However, while deciding the said Application, the Appellate Tribunal cannot decide the merits of the additional grounds sought to be urged. When such an Application is made for grant of leave, either a leave has to be granted or rejected. If leave is granted, at the time of final hearing of the Appeal, it is open to the Appellant to urge the ground in respect of which leave has been granted. In the present case, the Appellate Tribunal has purported to go into the merits of the additional grounds sought to be raised in the Application seeking grant of leave under Rule 10. The said course adopted by the Appellate Tribunal is completely erroneous and therefore, the order passed in the Application m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Pune confirming the demands in the sum of ₹ 32,52,923/against the Appellant covered by 12 show cause notices. The Deputy Commissioner imposed penalty of ₹ 2,00,000/on the Appellant under Rule 173 (Q) of the Central Excise Rules, 1944. The said order was subjected to a challenge by Revenue as well as the present Appellant. By the order in Appeal, the Commissioner (Appeals) dismissed the Appeal preferred by the Appellant and partly allowed the Appeal preferred by the Revenue. The Commissioner mainly considered the issue of applicability of Notification 1 of 1993. The controversy arises as a result of the claim made by the Appellant on the basis of the said Notification 1 of 1993 dated 28 February 1993. The case of the Appellant was that while it was manufacturing membrane switches as per drawings and specifications given by its purchaser, the Appellant was printing the name of its customer on the membrane switches. The contention of the Appellant was that its customers themselves are manufacturers of electrical machines and equipments and the membrane switches are used by them for manufacture of electrical machines. The printing of the names of its customers did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead thus: (a) Whether in the facts and circumstances of the case, the Appellant Tribunal is correct in upholding the order dated 20.10.2006 of the Commissioner (Appeals) and dismissing the appeals of Appellants before it? (b) Whether in the facts and circumstances of the case, Miscellaneous Order No. M/8525885259/ 16/EB dated 5.1.2016 passed in Miscellaneous Application in Appeal No. E/128129/ 2007 passed by the Appellate Tribunal was correct in rejecting the application urging additional ground that duty now demanded should be excluded from the price to arrive the correct quantum of demand of duty? (c) Whether in the facts circumstances of the case, since decision of Supreme Court in Kohinoor Elastic was delivered on 4.8.2005 and decision in Appellants case was delivered on 19.10.2005, Circular No. 71/71/94CX dated 27.10.1994 issued by CBEC, Ministry of Finance, Government of India would be ineffective from 4.8.2005 and hence demand of duty raised in the present case, which relates to period up to December 1999, is incorrect? (d) Whether in the facts and circumstances of the present case and in view of decision of Supreme Court in Godfrey Phillips India Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to make a reference to Rule 10, which reads thus: Grounds which may be taken in appeal: The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any grounds not set forth in the memorandum of appeal, but the Tribunal, in deciding 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 hard on that ground. (emphasis added) 9. The purport of Rule 10 is that the Appellate Tribunal in deciding an Appeal, need not remain confined to the grounds set forth in Memorandum of Appeal. However, if the Tribunal wants to consider a ground which is not set forth in Memorandum of Appeal, it is a duty of the Tribunal to give sufficient opportunity to the parties to the Appeal of being heard on the said ground. If the Appellant wants to urge a ground, which is not taken in the Memorandum of Appeal, he is entitled to do so by seeking a leave of the Tribunal. On plain reading of Rule 10, it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. The Division Bench went to the extent of observing that a leave as contemplated by proviso can be implied in a given case. 12. In the present case, instead of orally seeking leave at the time of hearing of Appeal, for putting the Respondent to notice in advance, the Appellant made a separate Application for grant of leave. While deciding the said Application, only issue to be considered was whether in the facts of the case such a leave could be granted. In a given case, if a factual contention is sought to be raised by seeking leave for which there is no foundation on facts either before the Adjudicating Authority or Appellate Tribunal, the Tribunal can exercise discretion of declining to grant leave. While dealing with such an Application made for seeking leave under Rule 10 of the Procedure Rules, the Appellate Tribunal is required to apply its mind to a limited issue whether leave is required to be granted. However, while deciding the said Application, the Appellate Tribunal cannot decide the merits of the additional grounds sought to be urged. When such an Application is made for grant of leave, either a leave has to be granted or rejected. If leave is granted, at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation which the Legislature has purposely not used. The framers were aware that use of a brand/trade name is generally to show to a consumer a connection between the goods and a person. The framers were aware that goods may be manufactured on order for captive consumption by that customer and bear the brand/trade name of that customer. The framers were aware that such goods may not reach the market in the form in which they were supplied to the customer. The framers were aware that the customer may merely use such goods as an input for the goods manufactured by him. Yet Clause 4 provides in categoric terms that the exemption is lost if the goods bear the brand/trade name of another. Clause 4 does not state that the exception is lost only in respect of such goods as reach the market. It does not carve out an exception for goods manufactured for captive consumption. The framers meant what they provided. The exemption was to be available only to goods which did not bear a brand/trade name of another. The reason for this is obvious. If use of brand/trade names were to permitted on goods manufactured as per orders of customers or which are to be captively consumed then manufacturers, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in this case the Appellant, who is applying/affixing the brand/trade name on the goods. Thus the words for the purpose of indicating refers to the purpose of the manufacturer(Appellant). The course of trade is of that manufacturer and not the general course of trade. Even if a manufacturer only manufactures as per orders of customer and delivers only to that customer, the course of trade, for him is such manufacture and sale. In such cases it can hardly be argued that he has no trade. In fairness it must be stated that it was not argued that there was no trade. Such a manufacturer may, as per the order of his customer, affix the brand/trade name of the customer on the goods manufactured by him. This will be for the purpose of indicating a connection between the goods manufactured by him and his customer. In such cases it makes no difference that the goods as manufactured did not reach the market. The use of the brand/trade name was in the course of trade of the manufacturer for the purpose of indicating a connection between the goods and the customer who used the brand/trade name . Clearly in such a case the exemption is lost. Now in this case there is no dispute o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution Bench that judgments of this Court would prevail then this appeal would stand dismissed. If however the Constitution Bench takes a contrary view, then of course the reverse will follow. In either case there will be order as to costs. 19. Now the issue whether or not the circular of the Board will prevail or the decision of the Apex Court will prevail is no more res integra and therefore, the decision of the Apex Court in the case of Kohinoor and in particular what is held in paragraphs 5 and 7 continue to hold good with all force. Even the judgment of the Apex Court in case of the Appellant itself holds the field. Now it is not open for the Appellant to contend that the law laid down by the Apex Court in the case of Kohinoor (supra) should be applied prospectively. 20. Therefore, we see no merit in questions (c) and (d) formulated in paragraph 26 of the Appeal. However, an order of remand confined to question (b) will have to be passed. Accordingly, we disposed of the Appeal by passing the following order: (i) The order dated 5 January 2016 passed by the Appellate Tribunal in Applications E/MA(Ors)/95264 95265/15Mum is hereby set aside and both Applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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