N.B. FOOTWEAR Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) WHEN we passed the stay order, we had also proposed to hear the appeal today. The amount which was directed to be predeposited has been deposited and we have noted the compliance. But when the appeal was taken up for hearing, ld. Counsel for the appellants raised a new plea against the Order -in -Original. It is submitted that the Order -in -Original was passed by the Deputy Commissioner of Customs and that it should have been passed by the Assistant Commissioner or Deputy Commissioner of Central Excise in terms of Rule 8 of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. Application for adding this plea as a new ground to the memorandum of Appeal has also been filed by the Counsel. In support of this application, he has relied on the Supreme Court's judgment in National Thermal Power Co. Ltd. v. Commissioner of Income tax . We have heard ld. Jt. CDR also. But we have not heard either side on the question whether the order -in -original was passed without jurisdiction. After reading the apex Court's judgment cited by ld. Counsel, we find that it is open to the appellant to raise a legal issue of this kind at this stage, even though, it was not raised before the lower authorities or in the memorandum of appeal filed with the Tribunal. Apparently, ld. Counsel is supported by the Apex Court's ruling. Accordingly, we allow the application for addition of new ground to the memorandum of appeal. This order shall be carried out within two weeks. Hearing in the appeal is adjourned to 20th June, 2006.