ORDER
S.S. Kang, Member (J)
1. The appellant vide their communication dated 30-7-1997 made a request to decide the appeal on merits.
2. The appellants filed this appeal against the order-in-appeal dated 27-2-1992 passed by the Collector of Central Excise (Appeals).
3. In this case, the dispute is regarding the classification of Linear Alkyl Benzene Sulphonic Acid chemically known as acid slurry. The appellant are engaged in the manufacture of acid slurry has filed classification list claiming classification of acid slurry under sub-heading No. 24.04 of the Schedule to the Central Excise Tariff Act, 1985. On the basis of sample of acid slurry which was drawn from the sister concern of the appellant i.e. M/s. Mid Camph Industries. The Assistant Collector of Central Excise vide order dated 6-11-1990 modified the classification of acid slurry and ordered the classification under Chapter sub-heading 3402.90 of the Schedule to the Central Excise Tariff, 1985.
4. The appellant filed the appeal and the appeal was dismissed by the Commissioner of Central Excise (Appeals) only on the short ground that the appellant has not filed a proper copy of the impugned order with the appeal memo. Only one page of the impugned order was enclosed with the appeal memo.
5. Heard Shri A.K. Madan, SDR on behalf of the Revenue.
6. In the present case, the dispute is in respect of the classification of acid slurry manufactured by the appellant. The appellants in their appeal memo submitted that the classification of the acid slurry was ordered to be under sub-heading 3402.90 of the Schedule to the Central Excise Tariff Act, only on the ground of result of sample drawn by the Directorate of Revenue. They further submitted that the Revenue has ignored the expert opinion given by the HRCOTS Buttler Institute, Kanpur.
7. The appellant also submitted that the authorities below had ignored their request for retesting.
8. In the present case, the appeal filed by the appellant was dismissed by the Collector (Appeals) only on the short ground that the copy of the order-in-original was not available with the memo of appeal. The Collector (Appeals) has not given any finding on merits. We find that in the case of Mitchem Industries the Tribunal vide Final Order Nos. 47-48/97-C, dated 26-12-1996 referred the matter to the Assistant Commissioner to re-adjudicate the matter after obtaining fresh report and expert opinion. The Tribunal in that order held as under :
11. We have considered the above submissions. We observe that learned Counsel’s contentions have strong force.
12. The Department’s case is based on the Departmental Chemical Examiner’s report but, we find that this report is not sufficient for the purpose of determining the correct classification. The Chemical Examiner was required to test and give a report with reference to all the relevant Chapter Notes and the Heading in the face of the appellants’ contention supported by an Expert Report from a well-known Institute and it was necessary on the part of the authorities below to consider their request for retesting and the Chemical Examiner was required to give his report with reference to Chapter Note l(b) of Chapter 34 as well.
13. It is noteworthy that Chapter Note 14.02 (sic) covers only certain types of organic surface active agents and washing preparations and cleaning preparations. But, in order to classify the product under this Chapter, it was necessary to see whether the product is hit by Chapter Note l(b) or not.
14. In view of this position, we set aside the impugned order and remand the matter to the Assistant Commissioner for re-adjudication after obtaining a fresh report and expert opinion in the light of above observations.
9. In view of the decision of the Tribunal in the case of Mitchem Industries v. Collector of Central Excise (supra) and in view of the fact that the Collector of Central Excise in the impugned order dismissed the appeals filed by the appellant only on the ground that copy of the order-in-original was not attached to the memo of appeal, we set aside the impugned order and remand the matter to the jurisdictional Assistant Commissioner for re-adjudicating the matter after obtaining the expert opinion and fresh report. The Assistant Commissioner should decide the matter after affording an opportunity of personal hearing to the appellant. The appeal is disposed of by way of remand.