2001(02)LCX0006
IN THE CEGAT, COURT NO. II, NEW DELHI
S/Shri P.S. Bajaj, Member (J) and K.K. Bhatia, Member (T)
COLLECTOR OF C. EX., AURANGABAD
Cases Quoted
Prince Khadi Woollen Prod. Coop. v. Collector — 1996(11)LCX0038 Eq 1996 (088) ELT 0637 (S.C.) — Followed. [Para 6]
Warner Hindustan Ltd. v. Commissioner — 1999(08)LCX0297 Eq 1999 (113) ELT 0024 (S.C.) — Followed......... [Para 6]
Advocated By : Shri Sheo Narayan Singh, SDR, for the Appellant.
Shri S.R. Bhargave, CA, for the Respondent.
[Order per : P.S. Bajaj, Member (J)]. - This order will dispose of two appeals No. E/537/95-B preferred against the order-in-appeal, dated 30-12-1994 and No. E/954/95-B against the order-in-appeal, dated 28-2-1995 passed by the Collector (Appeals). In both the appeals filed by the Revenue, the issue involved is common regarding the classification of product known as front end dozer and as such are being up together for disposal.
2. The respondents were engaged in the manufacture of various excisable goods viz. front end dozer; parts suitable for front end dozer, containers, etc. They filed classification lists in respect of front end dozers (with which we are concerned in the present appeals) claiming classification under Heading 84.32 of the CETA. They also sought benefit of Notification Nos. 111/88 and 1/93 for claiming exemption from payment of duty. The Assistant Collector, however, did not accept their version and classified the product under Heading 84.31 of the CETA and also confirmed the differential duty demand on them. In appeal No. E/537/95-B, the amount of duty involved is Rs. 54,900/- for the period April, 1993, while in the other appeal No. E/954/95-B the duty amount is Rs. 1,70,833.35 for the period February, 1994 to March, 1994. The Collector (Appeals) through the impugned orders referred to above, did not agree with the view of the Assistant Collector and held the classification of the products, front end dozer, under Heading 84.32 of the CETA, as claimed by the respondents.
3. The Revenue has filed the present two appeals against the above said two orders of the Collector (Appeals).
4. It has not been disputed, that when the dispute for the earlier period arose regarding the classification of this very products (front end dozers) manufactured by the respondents, the matter went up to the Collector (Appeals) and the Collector (Appeals) held the classification under Heading 84.32 of the CETA. The copy of that order dated 20-9-1994 has been also appended by the respondents along with their cross-objections. That order of the Collector (Appeals) was never challenged by the Revenue and as such had become final. Therefore, there exists no cogent reason for the Revenue now to seek the change in the classification when the product remains the same. The Tribunal cannot sit as a Court of appeal over the above said earlier order of the Collector (Appeals) classifying the products in question under Heading 84.32 of the CETA and to reverse the same, when it had already attained the finality.
5. It is also not the case of the Revenue that earlier any mistake of fact or law was committed by the Collector (Appeals) while classifying the product in question under Heading 84.32 of the CETA. No change in the mode of manufacture or design of the product had been also made by the respondents subsequent to the passing of the earlier order of the Collector (Appeals) in their favour so as to enable the Revenue to seek change in the classification under Heading 84.31 of the CETA. Therefore, the impugned orders of the Collector (Appeals) in both the present appeals by following his earlier order classifying the product in question under Heading 84.32 of the CETA by reversing the orders-in-original of the Assistant Collector who approved the classification under Heading 84.31 of the CETA, cannot be in any manner said to be factually or legally incorrect.
6. Moreover, in the present appeals the Revenue itself has tried to drift away from the earlier stand taken in the show cause notice for the classification of the product in question. In the show cause notice, it was alleged that the product in question (front end dozer) manufactured by the respondents was classifiable under Heading 84.31 of the CETA but surprisingly and strangely, they had now in the grounds of appeal claimed the classification under Heading 84.30 of the CETA. But it is well settled that no new case can be allowed to be made out by any party in the appeal and in this context reference may be made to Prince Khadi Woollen Prod. Coop. v. CCE - 1996(11)LCX0038 Eq 1996 (088) ELT 0637 (S.C.) and Warner Hindustan Ltd. v. CCE - 1999(08)LCX0297 Eq 1999 (113) ELT 0024 (S.C.) = 1999 (034) RLT 0595 (S.C.) wherein the Apex Court had consistently ruled that no new case regarding classification can be made at appeal stage. Therefore, the plea of the Revenue that the product in question deserves classification under Heading 84.30 of the CETA cannot at all be accepted. Their earlier stand in the show cause notice that the product in question was classifiable under Heading 84.31 of the CETA also is not sustainable in the light of the facts and circumstances discussed above.
7. Consequently, there is no merit in both the appeals filed by the Revenue and the same are rejected.
8. Operative part of the order already pronounced in the open Court on 24-1-2001.
______ Equivalent 2001 (129) ELT 442 (Tri. - Del.) Equivalent 2001 (043) RLT 0899