ORDER
V.P. Gulati, Vice President
1. These appeals and cross appeals arises out of the same order relates to the classification of the goods which were cleared by the appellants in the form of a kit. The learned original authority has classified each of the items of the Kit on its merit taking into consideration the relevant tariff heading applicable. The appellants had sought for the classification of the collection of the items as Kit under Tariff Heading 84.48. The learned lower appellate authority has upheld the order of the learned original authority for assessment of goods separately and not as a Kit, but he has also held that the demand could be only made prospective i.e. from the date of his order in this regard following the ratio of the decision reported in 1994 (74) E.L.T. 3 (S.C.) in the case of Rainbow Industries (P) Ltd, v. CCE, Vadodara.
2. The revenue is in appeal against this portion of the lower appellate authority’s order whereby the demand has been held to be applicable only prospectively. The learned JDR for the Department has pleaded that the ratio of the decision applicable in the case could be that in the case of Ballarpur Industries reported in 1995 (76) E.L.T. 499. This decision, he pleaded was referred by the Bench of 3 Judges headed by the Chief Justice and the decision in the case by Rainbow Industries was by a two Judges Bench and the same has been referred in the case of Ballarpur Industries. He has, therefore, pleaded that the learned lower authority is in error in following the ratio of the decision of the Hon’ble Supreme Court in the case of Rainbow Industries, He has also prayed that in terms of the decision in the case of Ballarpur Industries referred to supra, the Hon’ble Supreme Court has held that the demand could be made for the past period of 6 months. The learned Advocate for the respondents adopted the reasoning of the lower authority.
3. We have considered the pleas made by both sides. We observe that the decision in regard to the period for which the demand could be raised stands settled by the ratio of the decision of the 3 Member Bench of the Hon’ble Supreme Court in the case of Ballarpur Industries. The Hon’ble Supreme Court has clearly held that the period of 6 months would be available for raising the demand for the past period. In that view of the matter we hold that the learned lower authority misdirected himself in not taking note of the ratio of the decision of the Hon’ble Supreme Court in the case of Ballarpur Industries. We, therefore, set aside the order of the learned lower authority to that extent and allow the appeal of the revenue.
4. In the two cross appeals filed, the assessees have sought for re-classification of the individual items forming the Kit. The learned Advocate for the appellant has pleaded that each of these items is for use in the textile machinery and, therefore, all these items were classifiable under Tariff Heading 84.48. On a perusal of the order of the original authority… as well as that of the appellateauthority, we find that the applicants have specifically challenged the classification of ‘traverse assembly’, ‘Driveking assembly’ and ‘Flat drive reversal systems’ and the learned Advocate for the appellants has urged for the re-classification of these three items only under Tariff Heading 84.48. He could not explain us the details of these items nor we find any discussion in the order of the original authority or the lower appellate authority in regard to the details of these items and their use for holding them as assessable tinder Tariff Heading 84.83.
5. The learned JDR is also not able to enlighten us in this regard inasmuch as the authorities below has taken note of the plea of the appellants and the matter has not been examined in depth in regard to the competing classification headings. It is not therefore possible for us to go into the details for the first time in the absence of any assistance from both the sides. We are, therefore, constrained to remand the matter in regard to the classification of these goods to the lower appellate authority for de novo consideration and decision after taken note of the details of these items and their use and the scope of the respective tariff headings and after affording the assessees an opportunity of hearing. The cross appeals are, therefore, allowed by way of remand as held above.