1999(11)LCX0016
IN THE CEGAT, COURT NO. II, NEW DELHI
S/Shri S.S. Kang, Member (J) and V.K. Agrawal, Member (T)
COMMISSIONER OF C. EX., AHMEDABAD
Final Order Nos. E/1242-1246/99-B, dated 2-11-99 in Appeal Nos. E/225/93-B and 855 to 858/93-B
Cases Quoted
Vee Bee Industries v. Collector — 1999(06)LCX0074 Eq 2000 (116) ELT 0282 (Tribunal) — Referred.................. [Para 7]
Warner Hindustan Ltd. v. Collector — 1999(08)LCX0297 Eq 1999 (113) ELT 0024 (S.C.) — Followed............. [Paras 6, 9]
Advocated By : Shri A.R. Madhav Rao, Advocate, for the Appellants.
Shri R.K. Sharma, SDR, for the Respondent.
[Order per : S.S. Kang, Member (J)]. - These appeals are filed against the common Order-in-Appeal. Therefore, are being taken up together.
2. Appellants filed these appeals against the order dated 27-11-1992 passed by the Collector of Central Excise (Appeals). In the impugned order the Collector of Central Excise (Appeals) held that aluminium card cans are classifiable under sub-heading 7616.90 and plastic card under Heading 3923.00 of the Central Excise Tariff.
3. The brief facts of the case are that appellants filed a classification list classifying the aluminium card cans under sub-heading 7613.90 of the Central Excise Tariff. The jurisdictional Superintendent returned the classification list to the appellant with the direction to file a revised list in respect of both the items classifying them under Heading 8448 of the Central Excise Tariff. In response to the direction issued by the jurisdictional Superintendent of Central Excise, the appellants filed a revised classification list as desired by the Superintendent of Central Excise.
4. Thereafter, a show cause notice was issued to the appellants for classifying the aluminium card cans under sub-heading 7616 and plastic card under Heading 3923 of the Central Excise Tariff. Thereafter, Revenue again issued a corrigendum to classify the aluminium card cans under sub-heading 7612.91 of the Central Excise Tariff. In addition to this show cause notice, 5 show cause notices were also issued for demand of the additional duty. The adjudicating authority after hearing the appellants held that the aluminium card cans are classifiable under Heading 7612 and plastic card under sub-heading 3923 of the Central Excise Tariff proposed in the show cause notice.
5. The appellants filed an appeal before the Collector of Central excise (Appeals) and the Collector of Central Excise in the impugned order held that aluminium card cans are classifiable under Heading 7617.90 of the Central Excise Tariff and the plastic card under Heading 3923 of the Central Excise Tariff. The learned Counsel appearing on behalf of the appellants fairly conceded that he is not pressing the classification in respect of plastic card. Therefore, we uphold the impugned order in respect of classification of plastic card.
6. In respect of aluminium card cans, learned Counsel submits that the Collector of Central Excise (Appeals) classified aluminium card cans under sub-heading 7616.90. He submits that no show cause notice was issued to the appellants classifying the product under this sub-heading. He submits that the show cause notice was issued to the appellants for classifying the aluminium card cans as container of aluminium under Heading 7612.91 of Central Excise Tariff and the same was confirmed by the adjudicating authority. He submits as no show cause notice was issued to the appellant for classifying the product under Heading 7616.90 of the Central Excise Tariff as held by the Collector (Appeals), the impugned order is passed in violation of the principles of natural justice. He, further, submits that the Revenue can recover the duty under this heading after issuing a proper show cause notice for classifying the product in question under this heading. For this he relies upon the decision of the Supreme Court in the case of Warner Hindustan Ltd. v. Collector of Central Excise, Hyderabad, reported in 1999(08)LCX0297 Eq 1999 (113) ELT 0024 (S.C.) = 1999 (034) RLT 0595 (S.C.). He submits that the Hon’ble Supreme Court in this case held that a new case cannot be made out at the appeal stage. However, it is open to the Department to issue a show cause notice for revising the classification of the product. He, therefore, prays that the impugned order be set aside in respect of aluminium card cans.
7. Learned SDR appearing on behalf of the Revenue submits that the Tribunal in the case of Vee Bee Industries v. Collector of Central Excise, Ahmedabad, reported in 1999(06)LCX0074 Eq 2000 (116) ELT 0282 (Tribunal) = 1999 (033) RLT 0573 (CEGAT) held that aluminium card cans under Heading 7616 and plastic cards are classifiable under 3923 of the Central Excise Tariff and not under Heading 8448 of the Central Excise Tariff. He submits that as the classification issue in respect of product in question is settled by the Tribunal. Therefore, the appeal may be dismissed.
8. Heard both sides.
9. In this case the dispute is in respect of classification of aluminium card cans. A show cause notice was issued to the appellants for classifying aluminium card cans under Heading 7612.91 as containers of aluminium. The adjudicating authority confirmed the classification of the product in question as proposed in the show cause notice. On appeal filed by the appellants, the Collector of Central Excise (Appeals) vide impugned order, however, classified the aluminium card cans under a different heading i.e. 7616.90. We find that no show cause notice was issued to the appellant for classifying the aluminium card cans under this sub-heading of Tariff. The Hon’ble Supreme Court in the case of Warner Hindustan Ltd. v. Collector of Central Excise, Hyderabad, reported in 1999(08)LCX0297 Eq 1999 (113) ELT 0024 (S.C.) = 1999 (034) RLT 0595 (S.C.) held that a new case cannot be made out at the Appellate stage. However, it is open to the Revenue to issue a show cause notice for revising classification of the product.
10. In the present case the Collector of Central Excise (Appeals) classified the aluminium card cans Heading 7616.90 for which no show cause notice was issued to the appellants. Therefore, the impugned orders in respect of aluminium card cans is set aside. However, the Revenue is at liberty to proceed against the appellant in accordance with law. Appeals are disposed of as indicated above.
________ Equivalent 2001 (130) ELT 785 (Tri. - Del.) Equivalent 2000 (037) RLT 0374