ORDER
Lajja Ram, Member (T)
1. These are four appeals – Appeal No. E/2752/91-D filed by the Revenue, Appeal No. E/2799/91-D filed by M/s. Dena Snuff (P) Ltd. and two Appeals filed by the Revenue bearing Nos. E/3045-3046/91-D in which the respondents are M/s. Khetu Ram Bishamber Dass. M/s. Khetu Ram Bishamber Dass had filed Cross-Objections in both the appeals filed by the Revenue. In Appeal No. E/2752/91-D, the respondents M/s. Dena Snuff (P) Ltd. have also filed cross-objections. As in all these appeals and the cross-objections, the issues for our consideration are the same and therefore, they were heard together and are being disposed of by this common order.
2. For M/s. Dena Snuff (P) Ltd. (hereinafter referred to as M/s. Dena), Shri B.L. Sood, Advocate submitted that w.e.f. 1-4-1989, the Central Excise Tariff with regard to Heading No. 24.04 had been recast and a new sub-heading No. 2404.60 was inserted to cover the preparations containing snuffs of tobacco in any proportion. Before this changer-over, the snuff of tobacco was covered by sub-heading No. 2404.50 and this sub-heading was retained even after the changer-over from 1-4-1989. As new sub-heading 2404.60 was inserted to cover the preparation containing snuffs of tobacco in any proportions, their product became classifiable under this sub-heading 2404.60. As earlier they were paying duty under sub-heading No. 2404.50, they submitted a revised C/ List subsequently and started paying duty under sub-heading No. 2404.60. He submitted that the jurisdictional Collector, Central Excise agreed and viewed that the goods in question were correctly classifiable under subheading No. 2404.60 of the Tariff. However, the show cause notices were issued for the period 17-4-1990 to 31-5-1990 and the matter went upto the Collector, Central Excise (Appeals) and by her common order-in-appeal, she held that before the issue of show cause notice, the goods were classifiable under subheading No. 2404.60 but subsequently the classification under sub-heading No. 2404.50 was correct. Shri B.L. Sood, Advocate referred to the Tribunal’s decisions in the case of Lachman Dass Behari Lal v. C.C.E., New Delhi -1994 (71) E.L.T. 728 (Tribunal) and Khetu Ram Bishamber Das v. C.C.E., New Delhi-1997 (92) E.L.T. 631 (Tribunal) and pleaded that the order passed by the Collector, Central Excise (Appeals) classifying the goods under sub-heading 2404.50 for the period subsequent to the issue of show cause notice was not correct.
3. In reply Shri R.S. Sangia, Departmental Representative submitted that the goods even after addition of menthol continued to remain snuffs as in the case of snuffs the process of repacking and labelling amounted to the process of manufacture, the differential duty under the same sub-heading 2404.50 was correct. As regards the Tribunal’s decision, he submitted that the facts have to be examined in the light of the Tribunal’s decision and that the appeal has been filed in the Hon’ble Supreme Court against the Tribunal’s decision in the case of Lachman Dass Behari Lal (supra) and he is not aware whether any stay has been granted in this case by the Supreme Court.
4. At this stage, Shri Sood, Advocate submitted that no stay has been granted by the Supreme Court.
5. Shri Harban Singh, Advocate appearing on behalf of M/s. Khetu Ram Bishamber Dass submitted that as the matter is entirely covered by the Tribunal’s decision, the appeals filed by the Revenue had no merits.
6. We have carefully considered the matter. There is no dispute as regards the facts relating to the change in the Tariff. Prior to 1-4-1989, the snuffs of tobacco was classifiable under sub-heading No. 2404.50. There was no specific sub-heading for any preparation containing snuff of tobacco. Subheading 2404.90 covered ‘other’ but in the scheme of the Tariff this ‘other’ covered those products which were not specifically described in sub-heading Nos. 2404.11, 2404.12, 2404.13, 2404.19, 2404.21, 2404.29, 2404.31, 2404.9, 2404.41, 2404.49 and 2404.50. W.e.f. 1-4-1989, a new sub-heading No. 2404.60 was added in the Tariff to cover the preparation containing snuffs of tobacco in any proportion. After this amendment in the Tariff, the manufacturers before us in these proceedings represented that as they were obtaining duty paid snuffs from outside and were preparing the snuffs with menthol, perfumes, etc., their product was classifiable under sub-heading 2404.60. It is seen that the jurisdictional Collector, Central Excise had agreed with this view of the manufacturers. Subsequently, however, show cause notices were issued alleging that the Central Excise duty had been short paid and that the correct classification of the goods in question was under sub-heading 2404.50.
7. Shri B.L. Sood, Advocate had brought to our notice that in the case of Lachman Dass Behari Lal v. C.C.E., New Delhi -1994 (71) E.L.T. 728 (Tribunal), the Tribunal had held that the process under the raw snuff was subjected to various processes and flavouring substances and menthol added to it before retail packing, the process amounts to ‘manufacture’ and that a new commodity known in the trade had come into existence. It was held by the majority decision that the classification of such new product under sub-heading No. 2404.60 was appropriate. Reference was made to Section 2(f)(ii) of the Central Excise Act, 1944. The Tribunal had followed this decision in one of the respondents’ own case in the case of Khetu Ram Bishamber Dass v. C.C.E., New Delhi -1997 (92) E.L.T. 631 (Tribunal). This decision was not available to the ld. Collector, Central Excise in all these appeals (their two orders-in-appeal) when she recorded her decision.
8. Shri Satnam Singh, SDR had brought to our notice that the Revenue had filed appeal against the decision of the Tribunal in the case of Lachman Dass Behari Lal and that the appeal had been admitted by the Hon’ble Supreme Court. Learned Advocate had submitted that no stay had been granted by the Supreme Court of the operation of the aforesaid Tribunal’s orders [referred to Court-room Highlight at 1996 (86) E.L.T. A217].
9. As no contradictory decision has been brought to our notice and as we consider that subject to the process of manufacture involving in these cases being the same, the matter is covered by the Tribunal’s decisions aforesaid, we consider that all these matters have to be re-examined by the jurisdictional Commr. (Appeals), Central Excise in the light of the Tribunal’s decisions aforesaid.
10. In view of the above discussions, both the orders-in-appeal are set aside and the matters are remanded to the jurisdictional Commr. (Appeals), Central Excise who should re-examine the matters in the light of the Tribunal’s decisions aforesaid and after giving an opportunity to the manufacturers, pass appealable speaking orders as per law.
11. As a result all the four appeals – three filed by the Revenue and one filed by M/s. Dena Snuffs (P) Ltd. are followed by way of remand. Cross-Objections are also disposed of accordingly.