ORDER
S. Kalyanam, Member (J)
1. Stay : Since we propose to dispose of the appeal itself today on a question of law, we grant waiver of pre-deposit of duty pending disposal of the appeal today.
Appeal
2. The appeal is directed against the order of the Collector of Central Excise, Bangalore dated 15-1-1993. Shri Parameswaran, the learned Counsel for the appellant at the outset submitted that the issue arising for determination in the above appeal is with reference to the classification of the goods manufactured by the appellants, viz. Environmental Chambers, Humidity Chambers, High/Low Chambers etc. as to whether they are classifiable as testing equipments under Chapter Heading 90.24 of the Central Excise Tariff as contended by the appellant or under Chapter No. 84.15 as contended by the Department. The learned Counsel urged that the adjudicating authority has placed reliance on the opinion of an expert, one Prof. Krishnamurthy of Indian Institute of Science in the impugned order and this is also referred to in the show cause notice and in spite of the fact that the appellant made a specific request for cross-examination of the expert such an opportunity was not provided for resulting in the violation of the principles of natural justice, vitiating the sustainability of the order in law. The learned Counsel further submitted that identical goods have been classified in favour of the assessee as contended by the appellant and this is borne out in the order of the Collector of Central Excise (Appeals), Bangalore, Order No. 46/93, dated 29-3-1993 relating to the case of C.S. Medicals Pvt. Ltd. It was further submitted that the Department also accepted classification of the goods as testing equipments in respect of different manufacturers, viz. M/s. Blue Star Ltd., M/s. Kasco Industries and the learned Counsel in this connection placed reliance in support of his plea on the gate passes of the different companies manufacturing similar goods. The learned Counsel, therefore, submitted that if the Department still choose to place reliance on the opinion of the expert the appellant should be given an opportunity in confirmity with the principles of natural justice.
3. Shri Gregory, the learned SDR submitted that no doubt reliance has been placed on the expert opinion in the impugned order and the Department took steps to make him available for cross-examination the expert would not come and therefore, the Department is not in a position to do anything further. A reference of the learned Counsel for the appellant to an order by Collector (Appeals) in favour of the assessee in question of classification is factually correct and the Department as on date has not preferred any appeal against the same. The learned SDR further submitted that in respect of the plea that similar goods manufactured by various other persons mentioned by the learned Counsel for the appellant were classified as testing equipments, the learned SDR submitted that he has no instructions as on date.
4. We have considered the submissions made before us. On going through the records we find that reference is made to the opinion of the expert in the show cause notice and reliance is also placed on the same in the impugned order against the appellant. It is settled law that when reliance is placed on the opinion of the expert and a plea is made for cross-examination of the expert the expert should be made available normally for cross-examination. In this connection when the Bench put a specific query to the learned SDR as to whether the Department would give up the evidence of the expert and sustain the impugned order on other evidences the learned SDR submitted that the Department cannot give up the opinion of the expert. The learned SDR in fairness at this stage submitted that the issue may be remanded so that the Department would endeavour to persuade the expert to present himself for cross-examination. The learned SDR also submitted that the Department would also find out the correctness of the plea of the appellant that the Department was classifying similar goods of other manufacturers as testing equipments and prayed that a remand would be better in the above circumstances. Therefore, without expressing any opinion on the merits of the issue, for the reasons stated above we set aside the impugned order and remand the matter to the adjudicating authority for disposal of the issue afresh, in accordance with law and in the light of our above observations. Ordered accordingly.