ORDER
V.K. Agrawal, Member (T)
1. Today the matter is posted for condonation of delay and for hearing the stay application. There is no dispute from Revenue side that the appeal was filed within specified time. The mistakes and shortcomings in the appeal petition were corrected subsequently and on that reason only the condonation of delay application was filed by the appellants. As the appeal was filed in time and only the lacunae were removed subsequently, the appeal is to be treated as has been filed within time and accordingly the Condonation of Delay application is dismissed as infructuous. We also find that no duty has been confirmed under the impugned order as they deal only with the classification of the product manufactured by the appellants. In view of this, the stay application is also infructuous and is accordingly dismissed. As the issue involved is in narrow compass and the matter stands decided by Larger Bench of the Tribunal, we take up the appeal for disposal, as per the consent of both the sides.
Shri M. Chidananda Rao, Ld. Consultant submitted that M/s. Voltas Ltd. are manufacturing Choline Chloride which is animal feed supplement attracting classification under heading 23.02 of the Schedule to the Central Excise Tariff Act; that Assistant Commissioner classified their product under heading 29.42 as other organic compounds; that on appeal though the Commissioner (Appeals) gave a specific finding that the impugned product is marketed as animal feed supplement, he classified the product under heading 2923.10 as Choline and its salts. Ld. Consultant submitted that the Commissioner (Appeals) could not have classified the product under the heading which was not the subject-matter of adjudication by the Assistant Commissioner as they were not put to notice in respect of heading No. 29.23 of the Central Excise Tariff. He finally submitted that the Larger Bench of the Tribunal in the case of Teragon Chemie (P) Ltd. and Ors. v. CCE, Bangalore 1999 (30) RLT 366 has held that animal feed supplement will be classifiable under heading 23.02 of Central Excise Tariff Act and accordingly their product should be classified only under the said heading.
3. Shri S. Kannan, Ld. DR submitted that as the Larger Bench decision was not available at the time the classification list was modified by the Assistant Commissioner, the matter may be remanded to the Assistant Commissioner with the direction to decide the classification after taking into consideration the decision of the Larger Bench of the Tribunal.
4. After considering the submissions of both the sides, we agree with the Ld. Consultant that the Commissioner (Appeals) should not have classified the product under a new heading in respect of which they were not put to the notice. However, as the matter has been decided about the classification of animal feed supplement by the Larger Bench of the Tribunal in Tetragon Chemie (P) and Ors., (supra) which was not available to the Assistant Commissioner at the time of approving the classification list, we remand the matter to him with the direction to decide the matter afresh after affording a reasonable opportunity of personal hearing to the appellants and after taking into consideration the decision of the Tribunal in Tetragon Chemie (P) Ltd. case.