ORDER
S.K. Bhatnagar, Vice President
1. These three Appeals have been filed by three different appellants against a common Order-in-Appeal, dated 25-7-1994 passed by Collector of Central Excise (Appeals), New Delhi.
2. Ld. Counsel stated that all the three appeals relate to the same issue and the same period only the amounts involved are different.
3. All the three appellants have filed Stay Applications in the matter.
4. It was their contention that they are manufacturers of rubber products of various shapes classifiable under Chapter 40.
5. Initially all of them had filed the classification list under Heading 4016.99 and also claimed benefit of Notification No. 175/86 and these classification lists had been duly approved by the proper officer and the goods were accordingly cleared on payment of duty as indicated therein.
6. Subsequently, however, department was of the view that this classification was erroneous and the goods were required to be classified under 40.08 – the sub-heading depending upon their being cellular or non-cellular type and issued the show cause notice.
7. At this stage the appellants do not dispute the revised classification determined by the lower authorities in respect of both cellular and non-cellular type of their products. It was however their contention that admittedly the cellular types were classifiable under 4008.19 and carried a rate of duty at 60% upto 28-2-1993 and thereafter at the rate of 70% whereas the non-cellular types were admittedly classifiable under 4008.29 which carried a statutory rate of duty as nil all through.
8. It was their submission that therefore assessment has to be done accordingly; but while determining the duty liability the benefit of Notification No. 175/86 was also required to be extended. If this is so done it will be found that no amount is payable at this stage.
9. In this connection, he would draw attention to the revised classification list filed by them at the instance of department and approved by the A.C. as effective from 1-4-1993.
10. They would like to point out that in this classification list Notification No. 1/93 successor to 175/86 and continuing the same terms has also been claimed and allowed.
11. It was their contention that 175/86 and the successor Notification No. 1/93, incorporated an explanation for the purpose of computing the aggregate value of clearances and provided that clearances of any excisable goods which are chargeable to nil rate of duty or which are exempted from the whole of the duty of excise leviable thereon by any other notification shall not be taken into account. Therefore for the relevant period the quantity which was admittedly of non-cellular type was required to be taken into account and this being chargeable to nil rate of duty the value thereof was required to be excluded for the purpose of extending the benefit of this notification. In other words the value of the cellular type alone was required to be taken into account and it is less than the limit prescribed for extending the benefit of exemption both under Notification 175/86 as well as 1/93.
12. The department itself has restricted the demand to a period of six months and rightly so and there is no dispute regarding it. Therefore, even in accordance with the department’s own case the amount shown in the show cause notice was not required to be recovered.
13. These points were urged before the Assistant Collector. But he has refrained from taking them into account solely on the ground that this was not covered by the show cause notice.
14. In fact in respect of the above quantity and value all the three appellants had claimed refund and it had been sanctioned but not granted on the ground of unjust enrichment. All the same this quantity and value was required to be taken into account and excluded for the purpose of 175/86 and 1 /93 on the basis of department’s own case.
15. Ld. D.R. stated that initially the appellants had filed the classification list describing their goods as rubber packing of various shapes, designs and quality and got the classification lists approved on that basis but subsequently the department found that on the basis of their profile shapes (some of them being of the cellular and other of the non-cellular shape) they were required to be classified differently.
16. He reiterated that Asstt. Collector has not considered the benefit of Notification No. 175/86 and successor notification because they had not been invoked in the show cause notice(s) and were outside its purview.
17. In response to queries from the bench both the sides agreed that in so far as the description and classification of goods as mentioned in the classification list effective from 1-4-1993 and approved by the A.C. there was no dispute.
18. We have considered the above submissions. We observe that in view of the above submissions it is apparent that as on date there is neither any dispute on facts nor on law and the submissions made by Ld. Counsel boil down to only a request for direction to the officers for considering the consequential relief flowing from his own decision. In the circumstances the appellants have not only a prima facie good case but the case is entkely in their favour in so far as the question of consequential relief was concerned. Therefore we enquired from both the sides if simultaneously the main appeals themselves could also be taken up today and decided and both agreed.
19. In view of the above position we grant waiver of pre-deposit of the amount in question in all the three cases (without any conditions) and immediately take up the main appeals themselves for consideration.
20. We observe in this connection that Ld. D.R.’s emphasis on earlier description and approval etc. are no longer of any relevance in view of the agreed facts and position in law as the matter stands today. We note in this respect that no question of time bar is also involved at this stage.
21. In view of the agreed description, agreed classification and agreed applicability of notification all that remains to be seen is whether in this situation any demand still survives.
22. We consider that in view of the agreed position that the non-cellular type carries only nil rate of statutory duty and its quantity and value are required to be excluded for the purpose of Notification No. 175/86 and the successor Notification No. 1/93 the Asstt. Collector in the normal course should have taken this aspect into account and passed an appropriate order at his level itself. We have had occasion to observe that any aspect(s) which is intimately inter-linked or inter-twined with the main issue or flows therefrom is automatically required to be taken into account for the purpose of arriving at a correct decision in respect of the situation as a whole and determining the actual effective position. Similarly, the consequences flowing from a decision or order have to be naturally given effect to.
23. Since in these cases, as a result of revised classification read with the relevant notifications admittedly no amount remains demandable therefore the appeals are accepted.