1997(01)LCX0132

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri S.L. Peeran, Member (J) and Shiben K. Dhar, Member (T)

COLLECTOR OF CUSTOMS, COCHIN

Versus

SOUTH INDIA VISCOSE LTD.

Final Order No. C/408/97-B2, dated 27-1-1997 in Appeal No. C/2724/89-B2

Advocated By : Shri K.K. Jha, SDR, for the Appellant.

None, for the Respondents.

[Order per : Shiben K. Dhar, Member (T)]. - The respondents sought reassessment of a consignment declared as plastic strips on the ground that the goods are correctly classifiable under CTH 3926.90 and 3922.90 read with Notification No. 132/86-CE for CVD as against assessment made under heading 3921.11 CTA read with Notification No. 150/86. In the appeal filed before the Collector (Appeals), the respondents took the alternate plea for assessment under 8439.91 as part of machinery for making paper. The Collector (Appeals) remanded the case to the lower authority for examining the assessment under 8439.91. The lower authority while examining the merits of the case rejected the claim. Respondents filed an appeal against this order. The Collector (Appeals) in his order dated 12-7-1989 allowed the appeal and ordered reclassification of goods under yet another heading i.e. 8413.91 as part of propeller pump. The Revenue are in appeal against this order on the ground that it violated the principles of natural justice.

2. Arguing for the Revenue, the learned DR submits that the Collector (Appeals) could not have adopted the Tariff Heading which was not in dispute and in regard to which Revenue had not been put on notice.

3. The respondents have asked for decision on merits.

4. We have heard the learned DR and perused the record of the case.

5. The Collector (Appeals) in his order recorded that he has seen the sample of the product and the manner of its use for fitment as part of the bushing for propeller pump. On this ground he held that these were classifiable under heading 8413.91. From the proceedings before us, we find that alternate classification pleaded was 8439.91 claiming the goods to be parts of machinery for making or finishing paper or paperboard. We agree with the learned DR that the Collector (Appeals) could not have adopted the classification under Tariff Heading which was not dispute and for which the Revenue had not been put on notice. In view of this, we are of the view that the order of the Collector (Appeals) suffers from basic infirmity.

6. In view of this, we set aside the impugned order and remand the matter to the Commissioner (Appeals) for de novo decision after observing the principles of natural justice.

Equivalent 1997 (92) ELT 245 (Tribunal)