Full Judgment
2. The plea for adjournment was strongly opposed to Shri V.K. Puri the ld. SDR. He pointed out that considerable amount is involved and the Commissioner has given a specific instruction that the matter may be argued on merits for decision by the Tribunal. The Department's request for early hearing of the appeal had been made keeping in mind the stakes involved as well as the strong case on merits in favour of Revenue. It was also pointed out by him on the earlier hearing when, the application had come up for hearing that the Counsel for the Respondents had made a similar reference to the likelihood of the Supreme Court case coming up for hearing and it was after taking note of the same that the Bench adjourned the hearing of the appeal to today when the request is again, being repeated. He then referred briefly to trie discussion in the impugned order in appeal wherin the different Tariff sub-heading both before the amendment of the Tariff Entry, 1995 budget, and thereafter have been referred to and pointed out that after the deletion of the word Tace' in the relevant sub-heading the goods in question were bound to fall only under 5804.11 and not under 5804.90.
The decision taken by Collector (Appeals) classifying the product under 5804.90 was clearly not correct and this is what has been challenged with the present appeal. The issue for decision in the present appeal is limited to the correct sub-heading under 5804 namely whether in will be 5804.11 or 5804.90 and this issue is entirely independent of the other issue raised by the Respondents that their goods fall under Chapter 52 and not under 58 at all. Once the question of the request for adjournment made by the Respondents being allowed Shri V.K. Puri pointed out that it some similar cases where the department had requested for adjournment on the ground that appeals filed by the Department are before the Supreme Court, such requests had not been considered favourably and orders have been passed against the Department. Accordingly he pleaded that the present appeal may be taken up for hearing without waiting for the Supreme Court decision.
3. The ld. Counsel for the Respondents gave a rejoinder to the arguments advanced by the ld. SDR and stated that even though they had not filed an appeal before the Tribunal against the Order-in-Appeal classifying the product in 5804.90 and they had also not filed cross-objection in respect of the Department's appeal that would not deprive them of the opportunity to raise the plea of correct classification while resisting the appeal of the Department. In this connection we referred to the Tribunal decision in Polycone Paper Ltd. v. Collector of Custom, Bombay-I. In the said decision the Bench had applied the ratio of Supreme Court in the case Commissioner of Income Tax v. Mahalaxmi Textile Mills Ltd. - 1967 (3) SCR 957 and observed that all questions whether of law or fact relating to assessment classification may be raised before the Tribunal and new grounds need not be shut out solely for the reasons that they were not raised before lower authorities or that no cross appeal or cross-objection had been filed by the Respondents. As has come out during the hearing claim for classification of goods under Chapter 52 had been raised by the Respondents before the Assistant Collector and hence that claim even if not effectively pursued before the Collector (Appeals) may not be shut out at this stage. As this question namely the correct classification and the applicability of Chapter 52 for their product which is woven material is reportedly before the Supreme Court, we are inclined to grant adjournment prayed for by the Respondents. The matter is now adjourned to 6-3-1997.