ORDER
K. Sreedharan. J.
1. The issue raised in this appeal had a chequered career. The facts show that demand of duty on the goods has preceded the finalisation of the issue of classification. Therefore, we are constrained to set aside the demand of duty and direct the departmental authority to adjudicate on the issue of classification first.
2. Short facts necessary for the disposal of the appeal are as follows:-
Appellants manufactured plastic mats. They filed a classification list on 23.2.1987 of the period 1987-1988 seeking to classify the goods under Tariff Sub-Heading 3917.00. They also claimed the benefit of Excise Notification No.132/86. Without approving the classification list, show cause notice dated 31.3.87 was issued proposing the goods to be classified under sub-heading 3918.00. Purporting to be in pursuance to the said notice, the Assistant Commissioner classified the goods under sub-heading 4601 as per his order dated 9/11-9-1987. Aggrieved by the said classification decided by the Assistant Commissioner, the manufacturer went in appeal before the appellate authority. Appellate authority set aside the order of the Assistant Commissioner holding that classification under sub-heading 4601 was not proper when the show cause notice suggested classification under 3918.00. Appellate authority remanded the matter to the Jurisdictional Officer for decision on classification after issue of fresh show cause notice, proposing to classify under sub-heading 4601.00. Without issuing any fresh show cause notice, the Assistant Commissioner again classified the goods under sub-heading 4601 by his order dated 20.4.1989. Even though he did not issue a fresh show cause notice proposing classification under 3601, he did issue a letter dated 14.3.89 giving his reasons for classifying the goods under sub-heading 4601. The classification made by the Assistant Commissioner under 4601.00 was again challenged before the appellate authority. That authority quashed the order dated 20.4.89 passed by the Assistant Commissioner and directed the issue to be decided afresh. While doing so, he directed the manufacturer to treat the letter dated 14.3.89 sent to him by the Assistant Commissioner as show cause notice. The appellate authorities decision dated 21.2.91 thus, remitted the issue on classification for fresh decision by the Jurisdictional Assistant Commissioner. Pursuant to that direction no further order has been passed by that authority till date.
3. While the issue of classification of the goods was pending decision as stated in the preceding paragraph, show cause notice was issued demanding duty as though the product falls under sub-heading 4601.00. Show cause notice dated 4/5.8.87 issued by the Assistant Commissioner required the party to reply to the Commissioner on the demand of duty amounting to Rs.7,04,577/-. In compliance with the show cause notice party filed written objection before the Commissioner. Commissioner heard the matter on 6.2.1988. Before the Commissioner passed any final order on the demand of duty, Assistant Commissioner issued a corrigendum to the show cause notice requiring the party to file objection before him and not before the Commissioner. In reply to the said notice, the party took up the stand that Assistant Commissioner cannot hear the matter which was already heard by the Commissioner. Ignoring the said objection raised by the party, by order dated 12.11.1989 AC confirmed demand of Rs.6,04,103.94. That order was challenged in appeal. Appellate authority by order dated 20.7.90 quashed the order of the Assistant Commissioner holding that the Asst. Commissioner had no jurisdiction to decide the issues relating to suppression etc. That order has not been challenged by the party or the Deptt.
4. While the matter stood as stated above, order impugned in this appeal was passed by the Commissioner on 16.5.1993 purporting to be on the show cause notice dated 4/5-8-1987 issued by the AC directing the party to file objection before the Commissioner. The appeal came up for final hearing on 25.8.99. A Bench of this Tribunal allowed the appeal by final order No.845/99-C dated 25.8.99. While disposing of the appeal, the Bench took it that the demand of duty was for the period from 1.3.86 to 23.2.87. On the ground that the period reckoned by the Tribunal was not the correct one, and the actual period was from 1.1.87 to 31.3.87, application for rectification of mistake was filed as E/ROM/63/2000-C. On that application, by Miscellaneous Order No.71/2000 dated 11.9.2000, Final Order dated 25.8.99 was recalled and the appeal posted for rehearing. In pursuance to this order, appeal has come up for hearing before us.
5. From the above narration of facts, it is clear that the issue regarding the classification of the goods manufactured by the appellant has not been decided so far. The classification list filed by the appellant way back on 23.3.87 is still pending. A letter sent by the Assistant Commissioner on 14.3.89 was directed to be treated as show cause notice and issue on classification was ordered to be decided by the appellate authority as per its order dated 21.2.91. Without having decided on issue of classification, the demand of duty made in the impugned order cannot be sustained. On this short ground, we set aside the impugned order and direct the jurisdictional authority to decide on the classification of the goods at an early date. On the basis of that decision, it will be open to the authorities to take appropriate action for claiming the duty, if any, in accordance with law. Appeal is allowed as stated above.
(Pronounced & dictated in the open Court)