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TMI Blog2024 (10) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... ner examined whether the goods imported by the appellant were complete LCD TV panels or LED TV panels and found as a fact that as the benefit of the Exemption Notification is only available for complete LCD and LED TV panels, the goods imported by the appellant being not complete TV panels but open cell with the T-con Board, the benefit of the Exemption Notification would not be available? HELD THAT:- It is clear from the aforesaid judgment of the Supreme Court in SHRI RAMA MACHINERY CORPORATION (P) LTD. VERSUS COLLECTOR OF CUSTOMS [ 1991 (11) TMI 55 - SUPREME COURT] that though Rama Machinery Corporation had claimed one classification before the adjudicating authority but had claimed an alternative classification before the Tribunal. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D/LCD TV panels by classifying them under Customs Tariff Item [CTI] 8529 90 90 and claimed exemption of basic customs duty under Serial No. 432 of the Exemption Notification. This Notification was subsequently amended by notification dated 11.07.2014. 3. The department, however, believed that the appellant was not entitled to exemption under the Exemption Notification and, therefore, issued a show cause notice dated 12.05.2017. The appellant filed a reply denying the allegations made therein. 4. The basic issue that arose for consideration before the Principal Commissioner was whether the appellant was entitled to claim exemption under the Exemption Notification and in this connection, the Principal Commissioner examined whether the goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced reliance upon the judgment of the Supreme Court in Shri Rama Machinery Corporation (P) Ltd. vs. Collector of Customs [1992 (57) E.L.T. 369 (S.C.)]. Learned counsel also placed reliance upon the decision of the Tribunal in Diamond Cements Ltd. vs. Collector of Customs [1990 (50) E.L.T. 190 (Tribunal)] and Collector of Central Excise, Kanpur vs. West Glass Works, Firozabad [1984 (17) E.L.T. 368 ((Tribunal)]. 9. Shri Mihir Ranjan, learned special counsel appearing for the department, however, submitted that the application should be rejected. Learned special counsel contended that a new plea at the appellate stage should not be permitted unless it is deemed necessary for proper adjudication of the case. According to the learned special c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be manufactured for levy of central excise duty . The Department preferred an appeal from the order of the Collector. By the time the Tribunal came to decide the appeal it had the benefit of this Court s judgment in the case of Khandelwal Metal Engineering Works v. Union of India - 1985 (Supp.) 1 S.C.R 750. In view of this decision, the Tribunal came to the conclusion that even if the product represented scrap it was liable to excise duty. Faced with this situation the appellant sought to raise a point before the Tribunal that in case it was scrap, it would fall under Section 68 of the Central Excise Tariff Act and not under Item 26AA. It raised this argument because there is a difference in the duty leviable under the two items. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so be taken into account in deciding the classification for the purposes of excise duty. The appeal is disposed of accordingly. There will be no order as to costs. (emphasis supplied) 12. It is clear from the aforesaid judgment of the Supreme Court that though Rama Machinery Corporation had claimed one classification before the adjudicating authority but had claimed an alternative classification before the Tribunal. This was not permitted by the Tribunal. This view of the Tribunal was not accepted by the Supreme Court and it was held the Tribunal should have permitted the appellant to raise this alternative classification. 13. In Diamond Cements , which examining whether the appellant could be permitted to raise an alternative plea about cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accompanied by balance sheet and profit and loss account and other statements were filed by the assessee before the ITO and practically all the details for allowing a claim under S.80J(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 material on record for allowing the same. We are also of the view that additional ground of appeal can always be taken at the appellate forum. 6. In view of the above discussion and the judgment of the Hon ble Supreme Court in the case of Add. CIT v. Gurajargravures P. Ltd. (1978) 111 ITR 1 (SC), we allow the appellants request for raising the additional ground of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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