ORDER
Jyoti Balasundaram, Member (J)
1. These appeals involve common issues and are hence heard together and disposed of by this common order.
2. The brief facts of the case are that the appellants herein filed Classification List No. 30/83 effective from 26.4.83 for Domestic Electrical Appliances (Grillers) at SI. No. 4 of the list, as excisable goods under TI-33-C of the Schedule to the erstwhile Central Excise Tariff. They also declared at SI. No. 5, Domestic Electrical Appliances (Electric Stoves) and claimed exemption from duty on this item, in terms of Notification No. 33/69-CE dated 1.3.69 as amended. The Department was of the view that the item at SI. No. 5 had an in-built heating system designed to operate instantaneously when connected with mains or with electric power and was therefore, an electric cooker, which was excluded from the benefit of the notification under SI. No. 14 of the table annexed thereto.
3. Hence, a show cause notice was issued on 3.10.83 proposing to classify the product as Electric cooker liable to duty at the rate of 30% ad-valorem. The Assistant Collector of Central Excise, vide Order-in-Original No. 4A/AL/83 dated 5.12.93 held that the item in dispute was Electric cooker correctly classifiable as a Domestic Electric Appliance under TI 33-C but not entitled to the benefit of exemption under Notification No. 33/69-CE. He ordered its classification under TI 33-C read with SI. No. 14 of the Table to the notification.
4. Aggrieved by this order, the assessees preferred an appeal to the Collector of Central Excise, who by his Order-in-Appeal No. 2/CE/CHG/APPL/84 dated 7.5.85 held that the product in question is nothing but a component of ‘Simmer Matic’ (which is an Electric cooker) and not an Electric stove. He held that since it was not a complete article in itself but only a component part of a complete product, it would not fall for classification under TI 33-C but under TI 68. To that extent, he modified the order of the Assistant Collector. Against this order, the assessees preferred an appeal to the Tribunal which set aside the Order-in-Appeal dated 7.5.85 on the ground of violation of principles of natural justice and remanded the matter to the Collector (Appeals) for fresh decision in confirmity with the principles of natural justice. On remand, the Collector (Appeals) dismissed the appeal as infructuous holding as under:
5. “This is an appeal remanded by CEGAT for de-novo adjudication as per Order Nos. 33 to 35/1987 dated 15.1.87 pertaining to Order-in-Appeal No. 2/CE/CHG/ APPL/84 dated 7.5.85 in the case of M/s. PCA Electricals Pvt Ltd. and M/s. Pressure Cookers and Appliances Ltd. The office of SDR, New Delhi were requested to send the case file and the appellants were requested to supply the documents (i.e. copy of the Order-in-Appeal, copy of appeal filed with Collector (Appeals), copy of Order-in-Original) but neither the records have been received nor the documents have been sent by the party. In such a situation when the documents on the basis of which the case can be decided, are not available and in view of the fact that the case has been pending since 1987 and the party also has shown no keenness in supplying the documents, the appeal is dismissed as infructuous and disposed of accordingly.”
6. The assessees have filed Appeal No. 4257/92-B against the above Appellate order dated 23.4.92.
7. In the meanwhile, the Revenue also preferred an appeal to the Collector (Appeals) against the adjudication order dated 5.12.83, contending that the product in dispute was only a component of the Electric cooker and hence covered by TI 68 as such. The appeal of the Revenue was decided vide Order-in-Appeal No. 150/48/ CHD/92 dated 17.2.92, holding that the disputed item is only a component part of Domestic Electrical Appliance i.e. Electric Cooker and covered under TI 68. The assessee has filed Appeal No. 2858/92-B1 against Order-in-Appeal dated 17.2.92.
8. We have heard Shri Ravinder Narain, learned Senior Advocate appearing alongwith Ms. Sonu Bhatnagar Advocate for the appellants and Shri R.K. Sharma learned SDR for the Revenue.
9. Our findings are recorded below:
E/Apeal No. 2858/92-B: The show cause notice issued to the appellants in this case, proceeds on the basis that the product in dispute is Electric Cooker under TI 33-C of the Schedule to the Central Excise Tariff and the notice only proposed that the product will be classified as Electric Cooker under TI 33-C liable to duty at the rate of 30% Ad-valorem by denying the benefit of Notification 33/69 dated 1.3.69 on the ground that Electric Cookers are excluded from the coverage of the notification. The adjudication order holds that the product in dispute is not an Electric stove but an Electric Cooker correctly classifiable as Domestic Electric Appliance under TI 33-C not eligible to the benefit of exemption under the above-mentioned notification. The Assistant Collector has ordered its classification under TI 33-C read with SI. No. 14 of the Notification 33/69 and has directed amendment of classification list to bring the Electric Cooker under the ambit of excise net. It is clear from the above that the only point arising for consideration by the Adjudicating Authority was whether the benefit of exemption under Notification 33/69 was available to the product in dispute. However, the Review Application sought change of classification of the product from TI 33-C to TI 68 on the ground that the product was a component of Appliance which was known as Twink Simmer-Matic Cuisinette which comprises of a cooking bowl lid, etc. and was therefore, not a finished end product but a part/component of some other product, namely, the Twink Simmer Matic Cuisinette. The Collector (A) disposed of the appeal of the Revenue upholding the contention of the Department that the heating unit called stove by the respondents (assessees) is only a component of a Electric Cooker and hence not covered by TI 33-C but is a component part of a Domestic Electric Appliance i.e. Electric cooker, under the residuary TI 68. Hence the Review application has raised the issue of determination of a point not arising out of the decision or order of the Adjudicating Authority namely the issue of re-classification of goods under TI 68 and the Order-in-Appeal has also determined classification, which is a point that does not arise out of a decision or order of the Assistant Commissioner. Hence the impugned order travels beyond the scope of the provisions of Section 35-E of the Central Excise Act, Section 35-E(1) empowers the Board and Section 35E(2) empowers the Commissioner of Central Excise to call for and examine the records of any proceedings in which the Commissioner of Central Excise or an Adjudicating Authority subordinate to him, respectively has passed any decision or order under the Central Excise Act for the purpose of satisfying itself/himself as to the legality or proprietory of any such order of decision and may, by order, direct the Commissioner of Central Excise/such Authority to apply to the Appellate Tribunal/Commissioner (Appeals) for the determination of such points arising out of the decision or order, as may be satisfied.
10. Since the impugned order in this case has decided the point of classification and such point does not arise out of the order of the Assistant Commissioner, we agree with the learned Counsel for the appellants that the impugned order is bad in law and hence set aside the same, following the Tribunal’s order in in the case of Commissioner of Central Excise v. Eastern Aeromatics (P) Ltd. In the result, E/Appeal No. 2858-B is allowed.
11. E/Appeal No. 2457/92-B: In this case, the Collector (Appeals) has dismissed the appeal as infructuous. We note that the matter was remanded for fresh decision vide Tribunal’s order dated 15.1.87. Therefore, the Collector (Appeals) was bound to determine the issue, namely the issue of classification of the product–Whether under TI 33-C or TI 68. Since the lower Appellate Authority has not decided the issue, we are required to do so. As already held in the earlier appeal, the item in dispute is a component of Electric Cooker (Simmer Matic Model), there is no dispute that it is a Domestic Electrical Appliance as the Department itself accepts this position in the show cause notice and even the Collector (Appeals) in his order dated 17.2.92 (impugned Order in E/Appeal No. 2858/92-B) does not controvert the fact that the disputed item is a component of an Electric cooker. That being so, the correct classification of the product is TI 33-C which covers, “Domestic Electrical Appliances, not elsewhere specified”. The explanation to the Tariff item states “Domestic Electrical Appliance means electrical appliances used in the household and similar appliances used in Hotels, Restaurants, Hostels…”. The disputed item is covered by the Explanation. It is not a complete electic cooker, even according to the Department, as it becomes only one after addition of bowl, lid, etc; hence it is not excluded from the benefit of exemption under Notification No. 33/69 which excludes inter-alia cookers. We therefore, hold that the product in dispute is classifiable under TI 33-C of the Schedule to the erstwhile Central Excise Tariff and eligible to exemption from duty under Notification No. 33/69-CE dated 1.3.69 and allow the appeal.
12. In the result, E/Appeal No. 4257/92-B is allowed.