TaxTMI 
TaxTMI 
2010 (6) TMI 506
X X X X Extracts X X X X
X X X X Extracts X X X X
....o add new grounds, serving copy thereof on Revenue, for their defence plea. Accordingly, the appellant prayed time of two weeks for that purpose. To such a prayer, revenue desired that the application, upon filing by Appellant shall be sent to the Adjudicating Authority for examination. Accordingly the matter was adjourned to 27th August 2009. Thereafter the matter could not reach for hearing. 2. Yesterday, the matter was heard. Before Revenue opened its arguments, upon closure of the argument by the appellant, learned counsel for the appellant mentioned that the Miscellaneous Application No. 527 of 2009 may be disposed to enable the appellant to proceed with the legal pleading mentioned in para 2 of the application which reads as u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stoms duty vis-a-vis the excise duty paid on the DTA clearances has already been held to be permissible in the following judgments of this Hon'ble Tribunal : (1) Nikhil Industries Pvt. Ltd. v. CCE - 2005 (180) E.L.T. 321 (T) (2) STL Exports Ltd. v. CC - 2004 (164) E.L.T. 179 (T) (3) Opal Fabrics v. CCE - 2004 (164) E.L.T. 70 (T) The above submission regarding adjustment of duties is without prejudice to the main submission that no part of the duty demand is sustainable." 3. When a legal plea as above came forward from the Appellant, Revenue was asked to show the reason if any as to why such plea shall not be considered and the matter was adjourned. Accordingly, the matter was taken up for hearing today. Le....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mitting that the appellant is not entitled to the adjustment of the taxes paid which was not being decided by the Adjudicating Authority in absence of any pleading in that behalf before him. Raising of altogether a new plea today by the Miscellaneous Application is not entertainable. 6. We have made an extensive survey to the genesis of the case. When an assessee on similar matter was before Tribunal earlier, adjudication thereof was made by an order dated 24th April 2006 vide No. 10-11/C.E./JP-II/06. The present appeal is against adjudication order No. 12-13/C.E./JP-II/06 dated 24th April 2006 on self same issue. Learned counsel submits that the present case of the appellant although is on the similar footing of the factual matrix ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....deserves a hearing on that ground. Also we have noticed that when adjudication in this case was done on 24th April 2006, learned Adjudicating Authority had no advantage of going through the decision of the Tribunal in appeal case No. 472-473 of 2006 in M/s. Jain Grani Marmo Private Ltd. and Another decided on 17-2-2009. Therefore, it would be proper to grant fair opportunity of hearing to both sides by the learned Adjudicating Authority taking into consideration the developments made as above after adjudication. 9. Having arrived to the above conclusion, we dispose the miscellaneous application and direct both sides to cause their appearance before the learned Adjudicating Authority by end of June 2010 making an application to fix t....