Fair Banks Morse (I) Ltd. vs Commissioner Of Central Excise on 8 November, 2000

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Customs, Excise and Gold Tribunal – Delhi
Fair Banks Morse (I) Ltd. vs Commissioner Of Central Excise on 8 November, 2000
Equivalent citations: 2001 (127) ELT 386 Tri Del


V.K. Agrawal, Member (T)

1. In these two appeals – one filed by M/s. Fair Banks Morse (I) Ltd. and other filed by the Revenue – arising out of common Order-in-Appeal, the issue involved is whether various parts of the Power Driven Pumps are classifiable under Heading 84.13 as claimed by the assessee or under different headings/sub-headings of the Schedule to the Central Excise Tariff Act as confirmed by the Commissioner (Appeals).

2. Shri A. Dipankar, learned Advocate, submitted that the Assessee company has been manufacturing Power Driven Pumps and parts thereof since 1973 and there has been no dispute about the classification up to 1993; that they had filed two classification lists on 7-2-94 and 28-3-94 and 3rd classification list on 29-4-94; that the Asstt. Commissioner modified the classification list without issuing any show cause notice or affording an opportunity of being heard to the assessee; that the Collector (Appeals) set aside the order and remanded the matter to the Asstt. Collector with the direction to readjudicate the case after issuing show cause notice and granting personal hearing within 3 months; that inspite of this clear direction the show cause notice was issued to them after a lapse of 3 years on 25-5-98 seeking their views as to why the earlier approved classification list should not be re-confirmed; that the Asstt. Commissioner, under Adjudication Order No. 133/98 dated 21-9-98, confirmed the modified classification list without assigning any reason or giving any ground for modification; that they preferred the appeal before the Commissioner (Appeals) who heard the matter on 22-2-99 and directed them to file written submissions which were filed by them on 23-2-99; that however, under the impugned order dated 26-4-2000 the Commissioner (Appeals) has merely confirmed the Adjudication order without considering the submissions made and the case law cited by them; that the Commissioner (Appeals) had not considered the written submissions filed by them which is evident from the impugned order wherein it has been mentioned that “during the course of personal hearing learned Advocate reiterated the written submissions.” Learned Advocate further submitted that it has been held by the Supreme Court in the case of Bhagwandass Fatechand Daswani v. H.P.A. International – 2000 (2) SCC 13, that a long delay in delivery of judgment gives rise to unnecessary speculations in the minds of the parties to case. He has also relied upon the decision in the case of Kunwar Singh v. Shree Thakurji Maharaj, 1995 Supp (4) SCC 125. He finally submitted that parts manufactured by them can be used exclusively only in the Power Driven Pumps manufactured by them and these cannot be utilised in any other Power Driven Pumps; that as the impugned parts are suitable for use solely or principally with the Power Driven Pumps they have to be classified under Heading 84.13 only. Further, if these are not classified under Heading 84.13 they are not marketable as these cannot be used by any other person. He relied upon Note 2(b) to Section XVI of the Central Excise Tariff.

4. On the other hand Shri K.K. Goel, learned SDR, submitted that Note 2(a) to Section XVI of the Tariff is applicable as it provides that parts which are goods included in any of the Heading of Chapter 84 or Chapter 85 are to be classified in their respective headings; that Commissioner (Appeals) has applied Note 2(a) for classifying the products. In respect of appeal filed by the Revenue the learned SDR submitted that the Commissioner (Appeals) has classified 4 items namely End Tube Tension Nut, Adjusting Nut, Lock Nut and CIL Thrower Nut under Heading 84.13 holding them to be classified as parts of P.D. Pumps; that the assessee himself had requested the Asstt. Collector under their letters dated 26-8-94 and 29-9-94 to classify these items under Heading 73.18; that these are parts of general use which cannot be classified under Chapter 84 in view of Note l(g) to Section XVI.

5. In reply, learned Advocate submitted that no such letters have been produced by the Department and as such no decision can be taken on the basis of these letters.

6. We have considered the submissions of both the sides. We find that the Asstt. Commissioner while passing the Adjudicating Order has not given any reason as to why classification of the various parts has to be changed from the classification sought by the Assessee Company. In the absence of any reasoning given by him, it is not possible to pass any order on the classification of any of the impugned goods. Similarly department has relied upon two letters dated 26-8-94 and 29-9-94 said to have been written by the Assessee but these letters have not been brought on record, and therefore, no reliance can be made on them. We also find that written submissions given by the assessee has not been considered by the Commissioner (Appeals). In view of these facts we are constrained to remand these matters to the Asstt. Commissioner with the direction to adjudicate afresh the matter expeditiously and pass a well-reasoned speaking order after following the principle of natural justice. Both the appeals are, therefore, allowed by way of remand.

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