ORDER
S. Kalyanam, Member (J)
E/SB/Stay/524 & 525/88/MAS
1. Since we propose to dispose of the appeals themselves today on a short question of law with the consent of the parties, we grant waiver of pre-deposit of duty, panding disposal of the appeals today.
Appeal Nos. E/SB/836 & 837/88/MAS
2. These appeals are directed against the order of Collector of Central Excise (Appeals), Madras dated 30.9.1987 confirming the order of the Assistant Collector of Central Excise, Madras VII Division and classifying the products manufactured by the appellants under Tariff Item sub-heading No. 7407.00.
3. Shri Sriram Panchu, the learned Counsel for the appellants submits that their product, brass powder is classifiable under Tariff sub-heading 3801.90 (miscellaneous products of the chemical or allied Industries) not elsewhere specified or included. The Assistant Collector, without the appellants being afforded an opportunity of being heard revised the classification list to the detriment of the appellant and his order was confirmed by the appellate authority under the impugned order. It was urged that before an order adverse to the interests of the appellants is passed; principles of natural justice demand that the appellants should be afforded an opportunity of being heard.
4. Heard Shri K.M. Vadivelu, the learned D.R. who fairly conceded that before the order adverse to the interest of the manufacturer in regard to the classification of tariff is effected, the, aggrieved party should be given an opportunity of being heard.
5. We agree with the submissions made by the learned Counsel and fairly conceded by the learned D.R. that an order changing the classification list particularly an order adverse to the manufacturer should have been passed after affording an opportunity of being heard in conformity with the principles of natural justice. This decision is also adverted to in the Ruling of the Bench of this Tribunal in the case of Foods, Fats and Fertilizers Ltd. v. Collector of Central Excise, Guntur -1987 (30) ELT 538. The Bench of the Tribunal has referred to the Ruling of the Bombay High Court in the case of Swan Mills Ltd. and Anr. v. HR Amarnai and Ors. reported in 1982 ELT 445 (Bombay) wherein the Bombay High Court has held as under :-
“It would not be just and fair for the Excise authorities to decide the classification of a product merely by placing reliance on rulings of Division Bench. Justice requires that the Excise authorities must have material and evidence before them on the basis of which the said authorities may themselves come to a conclusion.”
We also note that the Bench of the Tribunal in the case of Mettur Chemical and Industrial Corpon Ltd. v. Collector of Central Excise, Coimbatore -1986 (26) ELT 756 has held that approval of classification list and price list are formal decisions made under the Act and are crucial ones in the process of assessment of manufactured goods.
6. The Division Bench of the Madhya Pradesh High Court in the case of Mad-humilan Syntax (P) Ltd. v. Union of India -1987 (32) ELT 489 (M.P.) has held that “In our opinion, though giving of a notice is not prescribed by any provision of the Act or the Rules, the principles of natural justice require that the person to be affected by any action of a statutory authority, should have opportunity to represent his case before such action is taken.”
7. in the light of the above decisions, we are inclined to hold that the impugned order appealed against is not sustainable in law and we therefore set aside the impugned order and remit the matter to the original authority for reconsideration of the matter after affording the appellants an opportunity of being heard in accordance with law.