2017 (10) TMI 81

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....ught to be incorporated in Appeal, while deciding the application made by the appellant under Rule 10 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (for short "the said Rules")?" 2 The Appeal is required to be heard on the aforesaid substantial question of law. Considering the narrow controversy involved in the Appeal, we have forthwith taken up the Appeal for final disposal. The present appellant preferred an Appeal before the Appellate Tribunal against the order dated 20th August, 2010 by which the demand for service tax and penalty was confirmed. An application was made by the appellant by invoking Rule 10 of the said Rules only for the purposes of adding grounds in the pending Appeal and permitting....

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.... memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or those taken by leave of the Tribunal under these rules: Provided that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground." 6 On conjoint reading of SubRule (1) of Rule 8 and Rule 10, it is apparent that hearing before the Appellate Tribunal need not be confined to the grounds of Appeal set forth in the Memorandum of Appeal filed in accordance with Rule 8. Only embargo on the power of the Tribunal in considering the grounds which are not raised in the Memorandum of Appeal is tha....

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....al. Normally an application seeking a leave under Rule 10 should be allowed unless the application is malafide or amounts to abuse of process of law. 8 The issue whether the additional grounds sought to be urged had any merit could not have been gone into while deciding the application made containing limited prayer as aforesaid. The issue to be decided while considering the said application was whether the appellant should be allowed to urge additional grounds set out in the application at the time of final hearing of the Appeal. The merits of the additional grounds could have been considered at the time of final hearing. Hence, even the order passed on the said application will have to be set aside and the said application will have to....