ORDER
S.K. Bhatnagar, Vice President
1. This is a stay application filed with reference to the order of the Collector (Appeals), New Delhi dated 15-7-1994.
2. Learned Counsel stated that they had filed classification list in respect of the products described as “Made up textile articles NES woven sacks of polymers of ethylene or propylene of combination thereof (known as HDPE woven bags)” classifying this item under 63.01 and this classification had been duly approved by the Assistant Collector.
3. Subsequently, the Central Board of Excise and Customs issued an Order No. 8/92, dated 24-9-1992 exercising its power under Section 378 for the purpose of uniformity of the classification of the said goods. Consequently, they filed a revised classification list classifying the item as directed by that order under 3923.90 and this classification list which was filed on 26-10-1992 was also duly approved. Later on, a Demand-cum-Show Cause Notice dated 19-3-1993 was issued by the Assistant Collector asking them to pay the differential duty with effect from 24-9-1992 that is the date of the Board’s order.
4. It was their contention that such demands could only be prospective and retrospective since the duty for the period had already been paid under the earlier approved classification list. The duty if any due could be demanded only with reference to the subsequent classification list that the date from which the latter became effective. In support of his contention, he would like to cite a judgment of Honourable Supreme Court in the case of Rainbow Industries Pvt. Ltd. v. Collector of Central Excise, Vadodara -1994 (74) E.L.T. 3 (SC) wherein it has been held that a revision of the classification list etc. would be effective only prospectively.
5. It was also his contention that even otherwise, no amount was due from them as under Heading 3923, the goods were exempted by virtue of the Notification No. 14/92, dated 1-3-1992 in view of the entry 37 thereof.
6. Learned DR opposed the prayer and stated that the Supreme Court’s judgment cited by the appellants does not help their cause.
7. The Board’s Order No. 8/92 is a 37B order which was issued on 24-9-1992 and the demand relates only to the period subsequent to this date.
8. It was also his submission that the item in question namely HDPE bags was covered specifically by Serial No. 40 of the Notification No. 14/92 whereas the Entry 37 pointed out by the learned counsel is relatively a general entry. Therefore, the former was more appropriate. It grants only a partial exemption and prescribes the effective rate of duty applicable.
9. Learned Counsel stated that if a Notification has two entries equally applicable to the goods in question then it would be open to the assessee to choose the entry which suits him. In support of his contention, he would like to cite the case of Indian Oil Corpn. Ltd. v. Collector, reported in 1991 (53) E.L.T. 347 (Tri.).
10. It was also his contention although this point of the benefit of the notification was raised by him before the learned Collector (Appeals), she has not recorded any finding thereon.
11. Learned DR stated that the appellants have not pleaded any financial hardship.
12. We have considered the above submissions. We observe that the case has arisen with reference to a Section 37B order of the Board; And since it admittedly covers the period subsequent to the date of the Board’s order, prima facie there is some force in the submissions of the DR in this respect.
13. At the same time, we also note the submission of the learned counsel that benefit of Notification No. 14/92 was even otherwise available to them and we find that the Collector (Appeals) has not recorded any finding with reference to this point. Further, we note in this connection that admittedly the item is covered by atleast one or both of the entries of this notification and even as the matter was arguable on this point, keeping in view of the Tribunal’s order in the case of I.O.C. referred to by the learned counsel, it will be more appropriate to consider their prayer at this stage.
14. Looking to the totality of the facts and circumstances and noting the above aspects in particular, we waive the pre-deposit of the amount in question and stay its recovery during the pendency of the appeal.
15. At this stage the learned counsel seeks leave to mention in spite of their informing the authorities that the stay application is pending before the Tribunal for hearing, the authorities had detained their goods worth of rupees one lakh vide Superintendent’s order dated 3-8-1994. A copy of the panchanama dated 17-8-1994 is produced in this connection and it is requested that the authorities may be suitably directed in view of the above order of the Bench.
16. The learned DR has no objection.
17. We accordingly, direct the Assistant Collector and the Superintendent and others concerned to immediately lift the detention and release the goods.