S.L. Peeran, Member (J)
1. By Order-in-Original the duty confirmed in the matter was Rs. 1,19,449 and a token penalty of Rs. 2000. Aggrieved by this order, they had filed an Appeal before the Commissioner (Appeals) who had not granted them stay of the recovery under Section 35-F of the Act. Therefore, they filed a writ petition before the Hon’ble High Court of Karnataka who had directed the appellants to pre-deposit 50% of the amount which has been complied with. The TR-6 challan has been produced and the Counsel is seeking waiver of the balance amount which is required to be paid on confirmation of the amounts by the Commissioner (Appeals) by the impugned order.
2. Ld. Counsel submits that the issue pertains to classification of an item known as canvass cloth subjected to water proving (sic) [proofing]. He contends that the issue has been finally decided by the Tribunal in the case of Ashish Enterprises v. CCE as which in turn has followed the ratio of the earlier judgment rendered in the case of CCE Aurangabad v. Ratan Tarpaulin (Appeal No. E/3035/93-D). He further submits that the Tribunal have also decided the issue in another case in Duck Sole and Ors. v. CCE as reported in 2000 (38) RLT 219. He contends that in both the judgments, the Tribunal took the view that the item is classifiable only under heading 5206 of the Central Excise Tariff Act, 1985 and not under the other Tariff heading namely 6301. He submits that these judgments have been pronounced after the impugned order was passed and the Commissioner had no occasion to go through these judgments. Therefore, he contends that the matter could be remanded to the Commissioner for de novo consideration.
3. Ld. DR points out that Chapter 63 is correct classification as held by the Commissioner as the item is specifically covered therein and the same is supported by the Explanatory Notes of HSN.
4. On a careful consideration of the submission, we notice that the Tribunal has taken a view pertaining to classification of the impugned product in the cited judgments. The Commissioner did not have an occasion to consider the same. Therefore, while granting waiver of pre-deposit, we take up the appeal and remand the same to the Commissioner (Appeals) with a direction that the appellants shall be heard in the matter and the case decided in the light of the above cited judgments. The points raised by Ld. DR may also be taken into consideration while deciding the case de novo. Ordered accordingly.