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TMI Blog2019 (1) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be denied the similar benefit in the other group of appeals. Under the circumstances, the anomaly that has arisen on account of the aforesaid circumstances needs to be rectified. The technical plea that such an issue was not raised before the Single Member Bench of the Tribunal would not come in the way of this court in rendering substantial justice in the present case. The question is answered in the affirmative, viz., that the appellant is entitled to similar relief as granted by the Division Bench of the Tribunal in the group of appeals arising out of the common order of the Commissioner (Appeals) - appeal allowed - matter is restored to the file of the adjudicating authority to ascertain the quantum of as such sale of the imported material sold in coil or sheet form, which alone can be considered for refund of 4% SAD paid at the time of import. - R/TAX APPEAL NO. 1156 of 2018 - - - Dated:- 12-12-2018 - Ms HARSHA DEVANI AND DR A. P. THAKER, JJ For The Petitioner : MR PARESH M DAVE (260) For The Respondent : MR PY DIVYESHVAR (2482) ORAL JUDGMENT ( PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. By this appeal under section 130 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction, out of the seven appeals filed by the appellant against the common order of the Commissioner (Appeals), three appeals came to be listed before a Single Member Bench of the Tribunal and four appeals came to be listed before a Division Bench of the Tribunal. The three appeals before the Single Member Bench of the Tribunal came to be decided by the impugned order dated 17.04.2017, whereby the appeals came to be dismissed. 4. Insofar as the four appeals out of the same group are concerned, a Division Bench of the Tribunal vide its order dated 27.09.2017 passed in Appeals No.C/10969/2013-DB to C/10972/2013-DB, remanded the appeals filed by the appellant to the adjudicating authority to ascertain the quantum of as such sale of the imported material sold in coil or sheet form, which alone could be considered for refund of 4% SAD paid at the time of import. 5. After the Division Bench of the Tribunal passed the above order on 27.09.2017, the appellant preferred rectification application in the appeals wherein the impugned order dated 17.04.2017 had been made, submitting that though the refund is not admissible on the imported coil/sheets, as it is converted into prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted partial relief, whereas in three cases their appeals have been dismissed. It was submitted that therefore, to maintain parity in all the cases, these matters are required to be remanded to the adjudicating authority for ascertaining the quantum of as such sale. 7. On the other hand, Mr. Parth Divyeshwar, learned standing counsel for the respondent, submitted that the rectification of mistake application was not maintainable as the issue with regard to sale of goods as such had not been raised before the Tribunal as well as the lower authorities. Reference was made to section 130(6)(a) of the Act, to submit that the same provides that the High Court may determine any issue which has not been determined by the Appellate Tribunal. It was submitted that if an issue is placed before the Tribunal and the same has not been determined, the provisions of section 130(6)(a) of the Act can be invoked. In the facts of the present case, when the issue has not been raised before any of the lower authorities or the Tribunal, the appellant is not entitled to be given a chance to rectify the mistake. 8. In rejoinder Mr. Paresh Dave, learned counsel for the appellants, submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of 4% SAD could be granted. Thereafter, the appellant moved the miscellaneous applications before the Tribunal contending that a portion of the refund amount comprises of goods sold as such on which refund of 4% SAD would be admissible, which came to be rejected by the Tribunal on the technical ground that such plea was not raised during the course of arguments. 11. Before this court also, on the technical plea that the appellant has not raised such issue before the lower authorities, the grant of any relief to the appellant has been opposed by the respondent. 12. From the facts referred to hereinabove, undisputedly this group of appeals as well as Appeals No.C/10969/2013-DB to C/10972/2013-DB which came to be adjudicated by the Division Bench of the Tribunal by its order dated 27.09.2017, arose out of a common Order-in-Appeal rendered in the context of identical facts. Before the Division Bench of the Tribunal, in the said case, it was argued on behalf of the appellant that the decision of this court in the case of Proflex Systems v. Commissioner of Customs rendered on 13.02.2017 in Tax Appeal No.862 of 2016 would not be applicable when the imported coils or shee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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