TaxTMI 
TaxTMI 
2017 (1) TMI 73
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....nsideration : (1) Whether the adjudicating authority has refused to admit evidence which ought to have been admitted ? (2) Whether the appellant was prevented by sufficient cause from producing before the authority any evidence which is relevant to any ground of appeal ? 2. The appellant-importer had filed Bill of Entry No.627594, dated 12.05.2004, and declared 84 items covered under two invoices. Subsequently, on 28.05.2004, he requested for permission to amend the Bill of Entry to include two more items covered under a third invoice. The adjudicating authority did not accept the explanation offered by the importer and confiscated the goods under Section 111 of the Act. The differential amount of duty was so insignific....
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....al was preferred against the said order before the Commissioner of Customs (Appeals), Customs House, Chennai, who, by his order, dated 20.11.2006, rejected the appeal and confirmed the order of the original authority, declining the claim for refund. In paragraph 3 of the Order-in- Appeal, the Commissioner of Appeals has noted that the Chartered Accountant's Certificate that the incidence of duty had not been passed on to the customers was furnished and that costing of accessories to the extendable breathing system and Mapleson clearly indicated that only 5% of duty was charged and the sales invoices for the period from August,2004, to January,2006, have been produced to show that there is no variation in the price, thus, evidencing that....
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.... (c) where the appellant was prevented by sufficient cause from producing before the authority any evidence which is relevant to any ground of appeal; or (d) where the adjudicating authority has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule (1) unless the [Commissioner] (Appeals) records in writing the reasons for its admission. (3) The [Commissioner] (Appeals) shall not take any evidence produced under sub-rule (1) unless the adjudicating authority or an officer authorised in this behalf by the said authority has been allowed a reasonable opportunity - (a)....
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....of admitting additional evidence before the Commissioner (Appeals) was built into the Rule. The appellate authority is, therefore, required to apply his mind as to whether the plea of the appellant to admit additional evidence falls within the aforementioned four exceptions or not and then admit the additional/fresh evidence. Whereas, the Commissioner (Appeals) has proceeded as if there is an absolute bar contained in Rule 5 from entertaining any such additional evidence. Clearly, the approach adopted by the Commissioner of Appeals is erroneous. 6. Far from laying down a bar in absolute terms, Rule 5 has clearly attempted to regulate the discretion liable to be exercised by the Appellate Commissioner, by providing for four different kind....
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....ng or annuling the decision or the order appealed against or may refer the case back to the authority, which passed such decision or order with such directions, as the Appellate Tribunal may think fit, for fresh adjudication or order, as the case may be, after taking into consideration additional evidence, if necessary. Thus, the jurisdiction conferred upon the Appellate Tribunal in terms of Section 129-B is fairly wide. Obviously, it is intended to secure a proper adjudication of the lis, both involving questions of fact and law as well. 9. In this context, it would only be appropriate to recall the principle enunciated by the Supreme Court in Jute Corporation of India Liamited v. Commissioner of Income Tax, (1991) 187 ITR 688. Again, d....