Page 182 - ELT_15th June 2020_VOL 372_Part 6th

860 EXCISE LAW TIMES [ Vol. 372

therefore could not be said to attract this provision and on that basis
no penalty could be imposed.’
Therefore, section 111(m) of Customs Act, 1962 is not to be considered as a
special law to deal with over-invoicing and the amendment enlarged the
scope for confiscation in the event of any misdeclaration, including value,
and even on goods under transshipment; the obliteration of ‘dutiable or
prohibited goods’ is merely an extension of that intent. That is not an angle
to be pursued. In the absence of validly determined value, the breach for
invoking section 111(m) of Customs Act, 1962 is not established. In the ab-
sence of goods that are yet to be cleared for home consumption, there is no
scope for invoking jurisdiction to hold the goods liable for confiscation.
of the Tribunal in re Knowledge Infrastructure Systems Private Limited to contend
that valuation could yet be redetermined in the present dispute.
24. There can be no doubt that arguments have been advanced on be-
half of the appellants that were not before the adjudicating authority or did find
a place in the grounds as preferred at the time of filing of the appeal. The sub-
missions that are now put forth arise from questions of law that have been set-
tled subsequently and which was not available when the impugned order was
issued. Moreover, there is a substantial difference between raising fresh grounds
of law and fresh grounds of fact at the appellate stage; as the latter must needs be
verified before being accepted and such verification is not normally feasible for
an appellate authority to undertake, fresh factual grounds are not admitted for
settlement of disputes at the appellate stage. We, therefore, do not think that the
decision in re Dempo Engineering Works Ltd., which was concerned with the con-
troversy of marketability impacting classification, a question of fact, and, that
too, without assigning reasons, requires us to refer any aspect of the fresh
grounds, entirely on law, back to the adjudicating authority.
25. As for the contention that the decision in re Knowledge Infrastructure
Systems Private Limited is not a binding precedent, for having been passed per ig-
noratium of the decision in re Prakash Sancheti, we are unable to agree. While the
Tribunal, in re Prakash Sancheti, did differ from the earlier decision in re Sahil Di-
amonds Pvt. Ltd., it was limited to the propriety of offering the right to redeem
goods that were confiscated in the light of the prescription of the Central Board
of Excise & Customs on non-availability of Kimberly Process Certificates. Dia-
monds, being imported generally for processing and export, are not usually sub-
ject to disputes on the extent of jurisdiction to re-open assessments. Neither of
these two decisions, therefore, had cause to examine the legal aspects that were
before the Tribunal in re Knowledge Infrastructure Systems Private Limited. Proba-
bly, Learned Authorised Representative was emboldened to suggest discarding
of this precedent by the citing, on behalf of the appellants, of the decision in re
Lalitpur Power Generation Co. Ltd., which relied upon the decision in re Sahil Dia-
monds Pvt. Ltd., and gave an opportunity to raise the contrary decision in her ar-
guments. We can safely assume that Learned Counsel did so because the deci-
sion in re Sahil Diamonds Pvt. Ltd. found favour with the Hon’ble Supreme Court
whereas the other decision cited is, as yet, untested. We would not be prejudicing
judicial consistency in overruling this suggestion of Learned Authorised Repre-
sentative because a decision which did not have an opportunity of examining a
legal aspect that lies at the root of exercise of jurisdiction is no precedent for con-
tending that a subsequent decision, which did, is bad law. A case law that is built
on the shifting stands of jurisdiction, accepted by consent, is not comparable with
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