ORDER
Lajja Ram, Member (T)
1. In this appeal filed by M/s. Swastik Udoyog, the matter relates to the demand of central excise duty on the clearances of the product referred to as ‘Pan Chutney’ during the period 1993-94. The Asstt. Commissioner of Central Excise, Noida, had classified under his order-in-original dated 1-2-1995 the said product under sub-heading no. 2107.91 of the Central Excise Tariff. Earlier the Asstt. Collector of Central Excise, Noida, had classified the said product vide order-in-original dated 9-2-1994 under sub-heading no. 2103.11 of the Central Excise Tariff, and the Collector of Central Excise (Appeals) had set aside the same under his order-in-appeal dated 18-10-1994 classifying the product ‘Pan Chutney under subheading no. 2107.91 of the Tariff. In the meanwhile, demand show cause notice was issued on 7-9-1994 and after extending the benefit of small scale exemption notification no. 1/93-CE dated 28-2-1993, demand of Rs. 1,68,588.69 was confirmed by the Asstt. Commissioner of Central Excise under his above mentioned order-in-original dated 1-2-1995. Under the impugned order-in-appeal dated 27-10-1995, the Commissioner of Central Excise (Appeals) confirmed the classification of the product in question under sub-heading no. 2107.91 of the tariff and upheld the demand of Rs. 1,68,588.69.
2. The matter was heard on 11-5-2000 when Shri J.S. Agarwal, advocate, referred to the earlier show cause notice dated 4-3-1993 for the period 1-4-1992 to 11-1-1993 which had been dropped by the Asstt. Collector of Central Excise under his order-in-original dated 9-2-1994. This order had been challenged by the Department before the Collector of Central Excise (Appeals), Ghaziabad. The Collector of Central Excise (Appeals) under his order-in-appeal no. 67/94 dated 30-5-1994, in appeal of a different assessee but with -regard to the same product, had taken a view that the product Tan Chutney’ was correctly classifiable under sub-heading no. 2107.91 of the Tariff. Following that earlier decision dated 30-5-1994, the Commissioner of Central Excise (Appeals), Ghaziabad, under order-in-appeal dated 18-10-1994 set aside the order-in-original dated 9-2-1994 and classified the said product under subheading no. 2107.91 of the Tariff.
It was the submission of the learned advocate that no show cause notice had been issued in the review proceedings and that it was a case of revision of the classification list already approved. It was his plea that on this ground the impugned order-in-appeal dated 27-10-1995 was bad and was liable to be set aside.
In reply, Shri R.S. Sangia, JDR, submitted that the matter of classification has already been decided by the Tribunal vide Final Order No. 1010/99-D dated 30-11-1999 [2000 (116) E.L.T. 585 (Tribunal)] in appellants’ own case while disposing of the appeal no. C/2304/94-D. The order of the Asstt. Collector of Central Excise had been reviewed by the Collector of Central Excise and thus it was not a case of revision of approved classification list.
He also submitted that the classification of Tan Chutney’ already stands settled at the highest level by the Hon’ble Supreme Court. He pleaded that as the matter has already been finally settled, there was no merit in this appeal.
3. We have carefully considered the matter. The issue of classification of the product Tan Chutney’ has been settled by the Tribunal in the appellants’ own case in appeal no. E/2304/94-D wherein it has been held that the same was classifiable under sub-heading no. 2107.91 of the Tariff. The Tribunal had relied upon their earlier decision in the case of Hari Chand Shri Gopal v. CCE, Meerut, 1996 (83) E.L.T. 281 (T), which as recorded in the decision in the appellants’ case has been confirmed by the Supreme Court. Thus, the matter of classification has been finally settled at the highest level against the appellants.
4. As regards the plea that it was a case of revision of approved classification list, we find that the classification as declared by the appellants under sub-heading no. 2103.11 of the Tariff had at no stage been accepted by the Department. They went on filing the declaration of their product Tan Chutney’ under sub-heading no. 2103.11 of the Tariff but it was not approved by the Department. The show cause notice was issued on 4-3-1993. Although this show cause notice was dropped by the Asstt. Collector of Central Excise under order-in-original dated 9-2-1994, this order-in-original was duly reviewed by the Collector of Central Excise in exercise of the powers vested in him, and an appeal was filed before the Collector of Central Excise (Appeals), Ghaziabad. The assessee had filed cross-objections before the Collector of Central Excise (Appeals) and also availed of the opportunity for personal hearing. The position as placed by them had been summarised by the Collector of Central Excise (Appeals) in his order-in-appeal.
5. Thus, we find that at no stage the classification has been finally approved by the Department. In a case where the classification as placed by the Asstt. Collector of Central Excise is reviewed by the Collector of Central Excise within the powers vested in him as per legal provisions applicable, it could not be said that the classification list has been approved by the Department.
Thus, we do not consider that it is a case of review of the classification list already approved. The submissions made in this regard on behalf of the appellants had no merit and are rejected.
6. The case law cited on their behalf is not applicable to the facts before us.
In the case of CCE, Bombay-II v. Dalai Plastic Corporation, 1999 (31) RLT 415 (CEGAT), it was observed that the revision of the approved classification was to be effective prospectively. As the approval accorded by the Asstt. Collector of Central Excise was not accepted by the Department and the same was reviewed under the legal provisions and powers available to the Department, we do not consider that it was a case of revision of the approved classification list.
Reference has also been made to the Civil Appeal filed by Fenner (India) Ltd. v. Collector against the Tribunal’s decision as reported in 1997 (93) E.L.T. 158 (Tribunal) [refer page A-220 of 2000 (115) E.L.T.]. The Court Room Highlights as appearing in E.L.T. is extracted below –
(1) Classification List-Approved classification list ceases to be so only when the correctness of approval is challenged (2) Unprocessed cotton/nylon woven carcass - Classification
The Supreme Court Bench comprising Hon’ble Mr. Justice S. P. Bharucha and Hon’ble Mr. Justice A. P. Misra on 3-11-1999 allowed the Civil Appeal Nos. 3608-3609 of 1997 filed by Fenner (India) Ltd against the CEGAT Order No. 50/97-D & M-6/97-D, dated 15-1-1997 and reported in 1997 (93) E.L.T. 158 (Tribunal) [Fenner (India) Ltd. v. Collector]. While allowing the appeals, the Supreme Court passed the following order : –
“The appeals must be allowed, being covered against the Revenue by the decision of a Constitution Bench of this Court in Collector of Central Excise, Baroda v. Cotspun Ltd. 1999 (113) E.L.T. 353. This being the position, it is not necessary to go into the controversy regarding classification.
The appeals are allowed. The order under appeal is set aside. Consequential relief shall be accorded to the appellants.
No order as to costs.”
A report relating to the admission of the appeals in question (Civil Appeal Nos. 3608-3609 of 1997) was published in Excise Law Times – 1999 (107) E.L.T. A62
The Appellate Tribunal in its order in question had held that unprocessed cotton/nylon woven carcass containing 32% cotton and 68% nylon approximately, are classifiable under Heading No. 59.09 of the Central Excise Tariff as more specific Heading than 54.08 ibid.
The Appellate Tribunal further held that in case there has been suppression or mis-statement, the demand of duty can be raised under the provisions of Section 11A of Central Excise Act, 1944. This demand cannot be confined only to a particular aspect, but can be extended to all aspects including the approved Classification Lists or Price List if the proviso/provisions are attracted.
We do not consider that in this case there was any approved classification list which has not been challenged by the Department. We do not consider that this decision of the Hon’ble Supreme Court is applicable to the fact of the present case.
7. On careful consideration of the matter, we do not find any merit in this appeal and the same is rejected. Ordered accordingly.
