A totally new plea cannot be made before the High Court for allowing the appeal.

PJ/Case Laws/2012-13/1406

Case:- LADDAN STEEL WARE MFG. CO. Versus C.C. (IMPORT & GENERAL), NEW DELHI

CITATION:- 2012 (28) S.T.R. 309 (Del.)

Brief Facts:-Appellant herein had imported SS Coils claiming benefit of Notification 48/99-Cus., dated 29-4-2009 which required the appellant to export goods manufactured out of the said material by way of fulfilment of export obligation. Because of this reason, limited duty was not charged. A show cause notice was issued to the appellant by the respondent department alleging contravention of the aforesaid notification. It was inter alia alleged that out of 407.070 MT SS Coils imported under the said Notification, 167.025 MT of Coils had not accounted for, and the utensils exported towards fulfilment of export obligation were manufactured out of locally procured material. The goods manufactured by the appellant were got examined by the Central Revenue Control Laboratory (CRCL) and on that basis, allegation was made that some of the export goods were not made out of the imported raw materials. Reply to this show cause notice was submitted by the respondents. After hearing the appellant, the agitating authority Commissioner of Customs passed an order-in-original upholding the demand in the show cause notice and also imposed penalty. The appellant filed an appeal against the respondent before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) which has been dismissed vide impugned order [2008 (231) E.L.T. 621 (Tribunal)] and challenging that order, present appeal is preferred.

Reasoning of Judgment:-The submission of appellant is that the appellant had made a request for re-testing of the material which was not accepted. However, it was found that no such plea was raised before the CESTAT. When the order of the Commissioner was not impugned on this ground and no grievance was made that the appellant's request for re-testing of the material was not accepted by the agitating authority such a plea cannot be permitted to be raised in this appeal for the first time. The High Court is informed by the learned counsel for the respondent that even before the agitating authority such a plea was not raised. In these circumstances, the other contention of the learned counsel for the appellant is that the appellant had raised several other pleas before the CESTAT which have not been considered by the Tribunal. ln this behalf, he has referred to para 3 of the impugned order, wherein contention of the learned counsel for the appellant before the Tribunal has not been taken note of. It was found from the paragraph that the contention taken was that there was no evidence on record to show that the appellant had connived with M/s. Laddan Steelware Mfg. Co. for diversion of the imported goods. Other primary issue before the Tribunal was as to whether the allegation made against the appellant that it had diverted the imported material to other channels and had procured local material for manufacturing utensils which was exported was correct or not. In this behalf, the learned Tribunal has rightly relied upon the report of CRCL and therefore, they did not find any merit in the appeal. The High Court, thus, do not find any substantial question of law in this appeal. It is accordingly dismissed.

Decision:-Appeal dismissed.

Comment:-The analogy drawn from this case is that a new contention that was not made before the lower adjudicating and appellate authorities cannot be made before the High Court as the order passed is not erroneous as regards the new contention raised subsequently.

Comments

PJ/Case Laws/2012-13/1406

Post a Comment

Query