By TIOL News Service

MUMBAI, JAN 25, 2014: THE appeals were heard by the Bench on 17/10/2013 and after conclusion of the arguments, orders were reserved. The appellant and respondent were directed to file a synopsis of their submissions by 25/10/2013. The respondent Revenue submitted the synopsis of the submission but the appellant sought time till 01/11/2013.

On 31/10/2013, the appellant filed their written submission. Along with written submissions they also enclosed product literature in respect of the products, whose classification is disputed, and an affidavit dated 31/10/2013 of Head, Factory Automation and certain certificates said to have been obtained from their customers in respect of the products. It is prayed that these additional documents be taken on record and considered while determining the classification of the impugned goods. Accordingly, Misc. applications were filed under Rule 23 of the CESTAT (Procedure) Rules, 1982.

The Bench observed that the basic principle of admission of additional evidence has been laid down by the Hon'ble Apex Court in the case of ShivajiraoNilengekarPatil Vs. Dr.MaheshMadhavGosavi - 1987 AIR 294 wherein the Apex Court laid down as follows:

i) The person who is tendering the additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance.

ii) The party affected by the additional evidence should have a reasonable opportunity to rebut the additional evidence.

iii) The appellate authority should be satisfied that these additional evidences are relevant for determination of the issue.

Adverting to the decision in Abdul Gaffar vs. CC- 2002-TIOL-517-CESTAT-DEL the CESTAT, after extracting the same, observed -

"3. …What is emerging out of these decisions is that only if the Bench considers that additional evidence is necessary for determination of the issue in hand they need to be admitted at all. In the present case this Tribunal has not asked the appellant to produce any of these documents. As regards the product literature, these are already available on record as part of the expert opinion tendered and is relevant for classification of the products. The affidavit now filed by the employee of the appellant firm or by the buyers of the goods are not at all relevant for determination of the classification issue. However, the product literature, which is already on record and forms part of the expert opinion tendered by the appellant will be given due consideration while determining the classification matter…."

In fine, the Miscellaneous application was rejected as not maintainable.

(See 2014-TIOL-124-CESTAT-MUM )