2001(05)LCX0247

IN THE CEGAT, SOUTH ZONAL BENCH, CHENNAI

S/Shri S.L. Peeran, Member (J) and Jeet Ram Kait, Member (T)

BHARAT HEAVY ELECTRICALS LTD.

Versus

COMMISSIONER OF C. EX., TRICHY

Final Order No. 628/2001, dated 4-5-2001 in Appeal No. E/618/99

Cases Quoted

Coastal Gases and Chemicals Pvt. Ltd. v. Asstt. Collector — 1997(04)LCX0021 Eq 1997 (092) ELT 0460 (S.C.) — Referred              [Para 7]

Dunlop India Ltd. v. U.O.I. — 1975(10)LCX0016 Eq 1983 (013) ELT 1566 (S.C.) — Referred............................. [Para 16]

Flat Products Equipments (I) Ltd. v. Collector — 1999(08)LCX0114 Eq 2000 (115) ELT 0629 (Tribunal) — Referred [Paras 8, 10]

I.T.C. Ltd. v. Collector — 2000 (039) RLT 0715 (Tribunal) — Relied on............................ [Paras 9, 14]

Mardia Steel Ltd. v. Collector — 2001(03)LCX0091 Eq 2001 (129) ELT 0334 (Tribunal-LB) — Relied on..... [Paras 7, 13]

Samrat International (P) Ltd. v. Collector —1990(09)LCX0085 Eq 1992 (058) ELT 0561 (S.C.) — Referred............ [Para 7]

U.O.I. v. Garware Nylons Ltd. — 1996(09)LCX0005 Eq 1996 (087) ELT 0012 (S.C.) — Relied on........................... [Para 16]

Advocated By :   S/Shri N. Venkatraman and Muthu Venkataraman, Advocates, for the Appellant.

Shri Veeraraghavan, ACGSC, for the Respondent.

[Order per : S.L. Peeran, Member (J)]. - This appeal has been filed by the public Sector Unit who have obtained clearance from the Committee of Secretaries to pursue this appeal.

2. This appeal arises from Order-in-Appeal No. 70/99 (Try), dated 12-1-1999 by which the Commissioner of Central Excise (Appeals), Trichy confirming the Order-in-Original No. 137/97, dated 19-11-1997 by the Asst. Commissioner had finalised 23 show cause notices issued from 20-9-1995 to 19-11-1997 as listed in para-1 of his order. The total demand raised initially in all the show cause notices and confirmed by the AC was Rs. 39,10,79,512.27. However, the Commissioner (Appeals) gave some relief which was later quantified and brought down to Rs. 35,32,83,006.00. After the matter came up before the Tribunal, the quantification was done and the C.C.E., Trichy by his letter dated 14-2-2000 addressed to Senior Departmental Representative, which is placed on record, indicating the said amount.

3. The short issue involved in this appeal is as to whether the goods described in the classification list dated 16-3-1995 is to be considered as ‘boiler’ for classification purpose under Chapter Heading 8402.10 attracting 10% rate of duty as claimed by the appellants or ‘parts of boiler’ attracting higher rate of duty at 15%.

4. In response to the show cause notices, the appellants had filed a detailed affidavit filed by one Dr. V. Gopalakrishnan, General Manager of the appellant company who holds a Bachelor’s degree in Mechanical Engineering from IIT, Madras, Master’s degree in Design and Production of Thermal Plant Equipment from Regional Engg. College, Trichy and Ph.D from Bharathidasan University, Trichy in “Classification of Indian coals”. He had joined appellant company in 1969 as an Engineer Trainee and acquired wide experience in Computer Aided Design and later rose to the level of heading the Research & Development wing of appellant factory. He has been a Member of the Board of Governors as well as the Academic Council of REC, Trichy and a visiting Professor of number of institutions besides having produced 40 papers on various subjects and acquired expertise in the field. He has also been visiting abroad for the purpose of training and attending conferences. The affidavit dated 8-12-1998 filed by him, which is very exhaustive running from pages 199 to 210 of Volume II of the paper book gives technical details and the extracts from various technical books to support appellants’ contention that what they had cleared from the factory at Trichy plant was a complete boiler and they are not to be treated as ‘parts’ as claimed by the Department.

5. Appellants on the basis of affidavit of the said expert, which is extracted in details from the literature and the books claimed that the items cleared were boilers which was not accepted to by the Department, as it is the contention of the Department that even according to the affidavit, they had cleared it as component parts of boilers and they were getting from other nine units, set up by them, various parts and components for the purpose of erection of boiler in Turn Key projects entered into by them with various contractors. However, this was the point contested by appellants by showing their invoices cleared from Trichy plant wherein, description of the goods cleared by them was mentioned as ‘boilers in CKD/SKD condition’.

6. The main issue which was before the authorities was as to whether the assessment had been finalised or not. There is no dispute by Revenue on the contention of appellants that assessment had been kept pending and they were provisional for the reason that the entire project would take more than 3 years for completion and erection at the site. Therefore, the value have to be arrived at only at the time of clearances. For that purpose all clearances in the price list and RT 12 returns had been kept provisional except the classification dispute which was also not finalised in view of the disputes raised.

7. The appellants’ contention before us is that the Larger Bench of the Tribunal in the case of Mardia Steel Limited & Ors. v. C.C.E., Indore reported in [2001(03)LCX0091 Eq 2001 (129) ELT 0334 (T-LB) = 2001 (043) RLT 0533 (CEGAT)] relying on the Apex Court’s judgment rendered in Samrat International (P) Ltd. v. C.C.E., 1992 (058) ELT 561 and that of Coastal Gases & Chemicals Pvt. Ltd. v. A.C.C.E., 1997 (092) ELT 460 have concluded in para 6 as follows :-

“6. From the above discussion, we are clear in our mind that Samrat International Pvt. Ltd. envisages payment of duty on provisional basis pending decision of classification list or price list. For these payments to be treated as provisional, procedure contemplated by Rule 9B is not to be followed. Therefore, we are of the considered view that the observation made by the Larger Bench of five Members that there should be material on record to show that procedure laid down in Rule 9B was followed for the purpose of showing that the assessments are provisional, cannot hold good in the case of payments of duty effected pending finalisation of classification list or price list. Subject to this clarification, we agree with the observations and findings arrived at by the said Bench in Misc. Order No. 47/2000-A.”

8. On the basis of the above ruling, ld. Advocate appearing for the appellants submits that since there is no dispute that the assessment on price list and RT 12 returns had been kept provisionally, the authorities ought to have taken up the issue of finalisation of the assessment alongwith classification dispute and given a common order. As the same has not been done, it violates the law laid down and therefore, the matter should go back for reconsideration. Ld. Counsel further submits that there is fundamental violation of principles of natural justice in not considering the technical literature, the affidavit, HSN explanatory notes and tariff notes from which it is very clear that the item cleared in terms of description in invoices is nothing but a complete boiler. In this regard, he also points out to the judgment rendered by the West Regional Bench in the case of Flat Products Equipments (I) Ltd. v. C.C.E., Mumbai, 1999(08)LCX0114 Eq 2000 (115) ELT 0629 (T). He submits that although this judgment does not deal with clearance of boilers, it deals with clearances of parts of rolling mills and galvanising lines removed for erection at site into rolling mills and galvanising lines assembly. He submits that the issue is in similar lines and the ratio laid down in that case has applicability to the facts of the present case.

9. Ld. Counsel further submits that in an identical situation as in the case of I.T.C. Ltd. v. C.C.E., 2000 (039) RLT 715, this very Bench relying on large number of judgments remanded the matter to the original authority to finalise provisional assessment before the show cause notice issued under Section 11A and penal action is adjudicated. Ld. Counsel submits that ratio of the above judgment relied upon by him, applies in toto to the present case and as such the matter requires to be remanded to the original authority to redetermine the issue in the light of the submissions made.

10. Appearing for the Revenue, learned Central Govt. Addl. Standing Counsel does not dispute the fact that the assessments were provisional. He submits that this was a peculiar case wherein the assessment pertaining to price list had to be kept provisional for the reason that the turn key project would take more than three years for completion and the prices had to be taken only at the final stage of clearance of goods from the factory. He submits that even in terms of the appellants’ affidavit they had described the item as essential parts of boiler. He contends that both the Commissioner and the AC have analysed the evidence relied and have discussed as to how the item removed from the Trichy plant does not constitute a full boiler. Unless all the auxiliary parts from the other nine plants are supplied and assembled, a boiler does not come into existence even in terms of explanatory notes and chapter note and section note. Therefore, he submits that merely because expert’s affidavit has not been countered with rebuttal evidence from experts, that by itself will not make the order bad. Therefore, he submits that on merits, the order given by the Commissioner and the AC for reclassification of the goods as ‘parts of boiler’ is a correct one and a justified order. He submits that the ratio of the WRB judgment rendered in Flat Products Equipments (I) Ltd. (supra) is clearly distinguishable, as it pertained to parts of machines and did not deal with complete machinery. In the present case, what was cleared from the Trichy plant was not a complete machine at all, as the other nine units of appellants’ factory in various parts of the country had to supply auxiliary parts which were assembled to bring the ‘boiler’ come into existence. The most crucial part is chimney which is an exhaust which has to be treated as ‘part of boiler’. Otherwise, boiler cannot function. The functionality of the boiler is dependent upon the auxiliary parts which are supplied from the other nine units. Therefore, the Revenue’s contention that what was cleared by the appellants from the Trichy plant are nothing but ‘parts of boiler’ is a correct contention. He further, submits that before amendment to the tariff on 16-3-1995, appellants themselves were clearing the items as ‘boiler components’. They have now suddenly changed their contention and described in the invoices as ‘boilers in CKD/SKD condition’ after amendment made to the tariff. Therefore, the stand taken by the appellants is contradictory to the actual facts.

11. The ld. Addl. Central Govt. Standing Counsel although fairly concedes that the law as on date is that once the assessment is provisional for one purpose, it is provisional for all purposes but so far the view expressed by Revenue on merits of classification is concerned, he submits that it is a correct view which is required to be upheld and matter be remanded only for finalisation of assessment on price list and RT 12 returns.

12. On a careful consideration of the submissions, we wish to place our appreciation on the very fair submission made by the ld. Addl. Central Govt. Standing Counsel in as much admitting that there was provisionality in respect of RT 12 returns and the consequences of it is that assessment is not finalised.

13. In view of these submissions, and the law already quoted supra that once there is a provisionality on one aspect, it is provisional for all purpose, we are constrained to set aside the impugned order and remand the matter for de novo consideration. The Larger Bench in the case of Mardia Steel Ltd. & Ors. (supra) have laid down in paras 2 to 7 as follows :-

2. The only issue, which requires to be considered by us in this matter, is whether the decision of the Supreme Court in Samrat International (P) Ltd. v. Collector of Central Excise reported in 1992 (058) ELT 561 envisages clearance of goods on provisional assessment de hors the provisions contained in Rule 9B of the Central Excise Rules, 1944.

3. Rule 9B of the Rules lays down procedure for making provisional assessment to duty. If the provisions contained in this Rule are complied with, the payment of duty can certainly be provisional. Duty paid on compliance with the entire provisions contained in Rule 9B will be payment on provisional basis stricto sensu.

4. In Samrat International (P) Ltd. v. Collector of Central Excise, 1990(09)LCX0085 Eq 1992 (058) ELT 0561 (S.C.), the assessee was clearing the goods between 1st April, 1985 to 3rd June, 1985 by determining the duty himself and debiting the amount of duty in his personal ledger account while the classification list was pending approval by the concerned authority. During the said period it was the admitted case of parties that the procedure contemplated by Rule 9B of the Rules was not followed. In such a situation, their Lordships of the Supreme Court observed :

“The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned.” (emphasis added)

During the said period from 1st April to 3rd June, 1985, assessee removed the goods on payment of duty determined by himself. Such clearance and payment of duty has been held by their Lordships as provisional. Consequently, their Lordships went on to state that the clearance of goods made during the period must be taken as having been made in accordance with the procedure for provisional assessment. In other words, even if the procedure contemplated by Rule 9B is not complied with, it will be deemed that the payment of duty was provisional. This means that payment of duty under the Act can be treated as provisional under two situations. First situation is where the payment is made in strict compliance with the provisions contained in Rule 9B of the Rules. The second one is the payment effected during finalisation of the classification list or price list. This payment during the interregnum will also be provisional even if Rule 9B is not followed.

5. Supreme Court in later decision Coastal Gases & Chemicals Pvt. Ltd. v. Asstt. C.C.E., Visakhapatnam, 1997 (092) ELT 460 took it that in Samrat International (P) Ltd. case payment of duty was made provisionally by following the procedure under Rule 9B. In the Samrat International case the Court observed :

“In the present case between 1st April, 1985 when the classification list was filed and 3rd June, 1985 when the list was approved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account. The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned. This is the procedure prescribed under Rule 9B except for the circumstance that no bond as provided in Rule 9B is required in a case where the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account current sufficient to cover the duty that may be demanded on the goods intended to be removed at any time. In these circumstances, the clearance of goods made by the appellant between 1st April and 3rd of June, 1985 was in accordance with the procedure for provisional assessment.”

In Samrat International (P) Ltd., their Lordships inferred payment in accordance with the procedure for provisional assessment in the absence of compliance with the procedure contemplated by Rule 9B. On the facts of Coastal Gases & Chemicals Pvt. Ltd., the Court was not convinced of the payment of duty on provisional basis. Consequently, the matter was remanded to the jurisdictional authority observing :

“If the appellants succeed in establishing that the payment of duty which was made by them for the period in question was a provisional payment, they shall be entitled to the benefit of the ratio of the judgment of this Court in Samrat International’s case (supra).”

The said observation does not lead to the conclusion that payment of duty can be provisional only when the procedure prescribed by Rule 9B is strictly followed.

6. From the above discussion, we are clear in our mind that Samrat International Pvt. Ltd. envisages payment of duty on provisional basis pending decision of classification list or price list. For these payments to be treated as provisional, procedure contemplated by Rule 9B is not to be followed. Therefore, we are of the considered view that the observation made by the Larger Bench of five Members that there should be material on record to show that procedure laid down in Rule 9B was followed for the purpose of showing that the assessments are provisional, cannot hold good in the case of payments of duty effected pending finalisation of classification list or price list. Subject to this clarification, we agree with the observations and findings arrived at by the said Bench in Misc. Order No. 47/2000-A.

7. The issue referred is answered in the above terms.

14. In terms of the above ratio, the AC should have finalised the show cause notices, only after assessments were finalished at the first instance. This is the point which has been emphasized and laid down in the case of I.T.C. Ltd. v. C.C.E. (supra). Even in ITC case, show cause notice had been issued while assessments had been kept provisional. Therefore, the Tribunal after due consideration of all the judgments on the issue, remanded the matter for de novo consideration with a direction that assessment shall first be finalised and thereafter the show cause notice should be determined. The findings recorded in paras 20 to 29 are reproduced herein below :-

20. Therefore, the issues for determination before us are as follows :-

(i)       Whether the show cause notice in question survives or is at issued without authority of law?

(ii)      Whether the Order-in-Original is required to be set aside and

(iii)     Suitable directions regarding finalisation of the provisional assessments for the entire period by the Jurisdictional Assistant Commissioner

21. Since the question of legal propriety of issue of show cause notice by Revenue while provisional assessment were still admittedly pending is central answer to either question, therefore, we consider this issue first. In this connection, we find that the matter is no longer res integra, but is covered by decisions of the various Courts and Tribunals as is noted above. In the case of UOI v. Godrej & Boyce Manufacturing Co. P. Ltd., the Hon’ble High Court at Bombay had held that since the show cause notice was based upon material which was the same as was concerned with the provisional assessment pending, therefore, the show cause notice was of dubious validity. It had further, held that the relevant date for issue of such a show cause notice under Section 11A would be the date of adjustment of duty after final assessment. This decision was confirmed by the Hon’ble Apex Court in their judgment dated 8-3-1990 (supra). In this connection, the Hon’ble Apex Court had observed as follows :-

“Nothing prevents the petitioners from utilising any material collected by them for the purpose of making the final assessment and that such material does not cease to be available to the assessing authority by reason alone of the circumstances that such material has been referred to and incorporated in the impugned notices”

In this case, vide the memo submitted by the ld. DR, Revenue has indicated a similar desire except that they went to continue adjudication on penal liability on the said show cause notice also after finalisation of the provisional assessment. Applying the ratio of this judgment, we find that nothing prevent the Revenue from the material contained in the impugned notice to be used as independent material to support the finalisation of assessment, after making this material known to the present appellants in writing and after considering their response thereto both in writing and on personal hearing, therefore, no prejudice would be caused to them on this ground.

22. In the case of Serai Kella Glass Works Pvt. Ltd. v. C.C.E., the Hon’ble Apex Court had similarly directed that no show cause notice under Section 11A of the Central Excise Act is required to be issued until the pending provisional assessments are finalized. Duty short levied, non levied or erroneously refunded, if found after final assessment, only then the proceedings under Section 11A can be taken up after issuing a show cause notice. Further, the Hon’ble Apex Court had also clarified that where such a show cause notice is issued under Section 11A of the Central Excise Act after finalisation of the assessment, the period of limitation will run from the date of adjustment of duty consequent to finalisation of the assessment. We find that this judgment squarely applies to the facts of this case and particularly the submissions of ld. Sr. Advocate that the present notice having been issued under Section 11A while the Provisional assessments were still in pendency was without authority of law because such a notice could only be issued after the assessments had been finalized. For that reason, we have to overrule the prayer of Revenue contained in the memo filed by DR that penal proceedings under this show cause notice could continue to be adjudicated upon by the Commissioner of Central Excise, Delhi after the provisional assessments are finalised. The law in this regard laid down by the Hon’ble Apex Court in the aforesaid two decisions is to the contrary. It is now well settled that while Revenue had the right under law to issue a fresh show cause notice under Section 11A etc., after considering the results of the finalisation of the assessments, the present show cause notice dated 25-9-1987 having been issued before such finalisation of assessment, would be, according to us, bad in law.

23. In case of Nayek Paper Industries Pvt. Ltd v. UOI (supra), the Hon’ble High Court at Calcutta had held similarly that a demand raised before finalisation of assessments would not be proper as the cause of action under Section 11A would arise only from the date of adjustment of duty finally assessed and not earlier, and therefore, no show cause notice under Section 11A could be issued prior to this event. Applying respectfully the ratio of this judgments, we find that the present show cause notice has been issued prematurely and that it could not have been issued under law because it is not in dispute that the show cause notice had invoked the provisions of Section 11A and the proviso thereof. Once the notice could not have been issued for recovery of any short levy or non levy etc., even if the said short levy or non levy was due to suppression or any other wilful intention on the part of the noticee, which also attracted penal liability, it is our considered view, that such penal liability could not be divorced from the demand of duty on this count. We find that this view is supported by the decision of the Hon’ble Calcutta High Court in this case wherein the Hon’ble Court has observed as follows :-

“In other words, the point of law would affect both the question of penalty as well as the payment of differential duty”

24. The Hon’ble High Court at Madras, in whose jurisdiction this Tribunal sits, has in its judgment in the case of Ponds (India) Ltd. v. A.C.C.E. (supra) similarly ruled that Section 11A is invokable only after finalisation of assessment in which finalisation, the various valuation dispute as per the price-list/declaration must be settled first under Rule 9(b)(5).

25. A similar decision has been taken by this Tribunal in the case of Modi Rubber Ltd. v. C.C.E. (supra) and the Tribunal’s Final Order No. 386/93-A in the case of C.C.E. v. Ponds (India) Ltd. & Others.

26. In view of these decisions discussed above, we are of the considered opinion that this show cause notice dated 25-9-1987 was not issued under any legal authority as the provisional assessments for this period concerning the assessee had not been finalised. Being pre-maturely issued, we find that the said show cause notice requires to be set aside.

27. Since the said show cause notice is required to be set aside, therefore, the attendant order-in-original impugned before us also cannot be allowed to survive.

28. This leaves us to the last issue namely to issue suitable directions with respect to the finalisation of the provisional assessment concerned. Since the Commissioner (Appeals), Central Excise, Bangalore has already remanded the issue of finalisation of provisional assessments with respect to the present appellants to the Jurisdictional Assistant Commissioner for a similar period, we also direct that the matter pertaining to finalisation of the provisional assessments on all issues which are pending shall be attended to expeditiously by the Jurisdictional Assistant Commissioner concerned. We also clarify that in terms of the decisions noted above, the said Jurisdictional Assistant Commissioner shall have the liberty to use all the material, evidences, etc. which were available to Revenue in the show cause notice dated 25-9-1997 while proposing finalisation of the provisional assessment provided the said Assistant Commissioner brings all these to the notice of the present appellants in writing and then also considers their submission thereupon both in writing as well as during personal hearing. He shall thereupon, after a detailed consideration of these, proceed to pass a speaking order under Rule 9(b)(5) finalising the assessments on all counts for the period under dispute as noted above. While doing so, he shall also comply with the orders of the Commissioner (Appeals), Central Excise, Bangalore which would merge with each other. With respect to the prayer of ld. DR regarding invokation of Rule 6, we submit that this is a matter which can be decided upon by Revenue at the appropriate time. It does not require any direction from us. At this point, ld. Sr. Advocate submits that in order to judiciously, effectively and practically implement these directions from us, it would perhaps be necessary that the appellants’ representatives are associated informally with the Jurisdictional Assistant Commissioner at the time of computation and calculations which may lead to the finalisation of the assessments expeditiously. Though such a request appears slightly unusual, we are of the considered opinion that if it is accepted by Revenue, it would certainly lead to reduction of areas of conflict at a later date, as also a more judicious and expeditious settlement of this dispute. Therefore, we commend this for consideration of the Revenue.

29. In view of the aforesaid findings and analyses, we sum up our orders as follows :-

(a)      The show cause notice dated 25-9-1987 and the attendant order-in-original impugned before us are set aside;

(b)      The Jurisdictional Assistant Commissioner is directed to expeditiously address himself to the finalisation of the provisional assessments as already detailed above;

(c)      In view of the aforesaid Judicial decisions, we find that the Revenue shall be at liberty to examine the issue of any short levy, non-levy and consequent penal liability only after the finalisation of the assessment, etc. as per law.

The appeal is disposed of accordingly.

15. In view of above two judgments, the impugned orders are required to be set aside for de novo consideration.

16. The aspect pertaining to classification also in our humble, opinion also requires to be relooked for the reason that in the present case, appellants had produced an affidavit of an expert. The expert in his affidavit has extracted large number of technical literature to point out that what was removed from the Trichy plant was nothing but a boiler and other items which were supplied by the nine units were auxiliary parts which were having separate chapter headings for its own classification. This point cannot be dealt with by quasi-judicial authorities on their own which requires to be tested with rebuttal evidence of experts. This is the view expressed by the Apex Court in the case of Union of India v. Garware Nylons Ltd. - 1996(09)LCX0005 Eq 1996 (087) ELT 0012 (S.C.). The Apex Court in the above case, has held that burden of proof on the taxing authorities to show that a particular item is taxable in the manner claimed by them. More assertion by the taxing authorities without placing any evidence or making any trade enquiries or without dealing with the affidavits filed by the persons dealing with the subject would make the order null and void and will be not acceptable. The Apex Court’s finding recording in para 15 of this judgment is reproduced herein below for the purpose of guidelines to the original authority :-

“15. In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. Especially in a case as this, where the claim of the assessee is borne out by the trade inquiries received by them and also the affidavits filed by persons dealing with the subject matter, a heavy burden lay upon the Revenue to disprove the said materials by adducing evidence led in this case conclusively goes to show that Nylon Twine manufactured by the assessees had been treated as a kind of Nylon Twine manufactured by the people conversant with the trade. It is commonly considered as Nylon Yarn. Hence, it is to be classified under Item 18 of the Act. The Revenue has failed to establish the contrary. We would do well to remember the guidelines laid down by this Court in Dunlop India Ltd. v. Union of India [1975(10)LCX0016 Eq 1983 (013) ELT 1566 (S.C.) = [AIR 1977 S.C. 597] at page 607, in such a situation, wherein it was stated :-

“..........When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it parentage and consign it to an orphanage of the residuary clause.” (Emphasis supplied).

17. At this stage, ld. Additional Central Govt. Standing Counsel intervened to say that the testimony or the affidavit filed by the person is a self-interested testimony, inasmuch the affidavit has been filed by their own expert, who is the General Manager. This is countered by the ld. Counsel for the appellants by pointing out to page 241 of the paper book wherein the affidavit of an independent expert has also been filed.

18. In view of the affidavit filed by the appellants’ expert as well as by an independent affidavit filed by another expert and in view of the Apex Court’s judgment, the original authority is required to test this evidence before re-classifying the goods as ‘parts of boiler’ as per their contention. Therefore, we are of the considered opinion that even on the aspect of classification, the matter requires to be re-adjudicated in the light of detailed submissions made by the appellants. Revenue is at liberty to counter it by rebuttal evidence. While doing so, an opportunity has to be given to the appellants to deal with the rebuttal evidence at the time of personal hearing.

19. In view of our findings above, the impugned order is set aside and matter remanded to the original authority who shall decide the case de novo by observing principles of natural justice.

_______

Equivalent 2001 (138) ELT 0299 (Tri. - Chennai)

Equivalent 2001 (046) RLT 1031