Customs, Excise and Gold Tribunal - Tamil Nadu
Cce vs Interface Electronics Pvt. Ltd. on 11 December, 2002
Equivalent citations: 2003(108)ECR598(TRI.-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. The Revenue is aggrieved with order-in-Appeal No.309/94 dt.30.12.1994 by which the order of the Assistant Commissioner held the classification of the "Bus Ducts" under chapter heading 8544 of the schedule to the Central Excise Tariff Act 1985 upheld. However, Commissioner (Appeals) held that demand for six month prior to the issue of show cause notice cannot be recovered in view of the Apex Court judgment rendered in the case of Rainbow Industries v. CCE . The Revenue contend that the duty for six months period prior to the date of show cause notice is recoverable in view of the fact that proviso to Section 11A clearly lays down such recovery and it refers to the earlier judgment of the Apex Court rendered in the case of Elson Machines Pvt. Ltd. v. CCE .
2. Appearing for the Revenue Ld. Dr Shri A. Jayachandran submits that the Finance Act has been amended and the recovery for six months under the proviso to Section 11A is sustainable. Further he submits that the Chartered Accountant's submissions made now on their appeal against the same order seeking classification of the impugned product under Chapter Heading 85.37 has been upheld by the Bench vide Final order No. 2968/77 dt. 17.11.1997 and as such aggrieved with no short levy arises in the matter.
3. Ld. C.A. submits that the appellants have paid duty on the product in question under Chapter Heading 8537 and the Department issued short levy for changing the classification under the Chapter Heading 8544 of the Central Elxeise Tariff Act 1985. Since their claim of classification has been upheld by the Tribunal in the above noted orders by setting aside the impugned order and therefore, the question of confirming the demand for six months prior to the show cause notice does not arise.
4. On a careful consideration of the submissions made by both sides, and on perusal of the Tribunal final order No. 2968/97 dt. 17.11.1997 passed in the appellants' own case has set aside the order in appeal No. 309/94 (M) dt. 30.12.1994 passed by the Commissioner of Central Excise (Appeals), Chennai. The result is that no short levy arises for recovery for six months as the assessee's contention for classification of the "Bus Ducts" under the Chapter Heading 8537 has been upheld and that the duty paid by them is according to the said heading, therefore, there is no merits in these appeals and the same are rejected.
Order dictated and pronounced in open court