Customs, Excise and Gold Tribunal - Delhi
C.C.E. vs Himachal Terpene Products Pvt. Limited on 20 November, 1996
Equivalent citations: 1997(90)ELT327(TRI-DEL)
ORDER
S.K. Bhatnagar, Vice President
1. This is a stay application filed by the Department w.r.t. the order-in-appeal passed by the Collector of Central Excise (Appeals), Chandigarh dated 4-4-1991.
2. A notice for todays hearing has been issued to the respondents. However, neither any appearance has been caused nor there is any other communication requesting for adjournment or otherwise on record before us. In the circumstances, we have perused the records and heard the ld. DR.
3. Ld. DR states that the appellants are manufacturing terpeneol. They had claimed in their Classification List No. 1/88-89 w.e.f. 1-4-1988 that the product was classifiable under 2906.90 as bulk drugs. This classification list was approved by the A.C. on 20-4-1988. However, the assessee filed the revised classification list under cover of letter dated 27-4-1988 claiming classification under 3003.30 effective from the same date.
4. The A.C. informed them that the classification of the said goods had already been approved for the relevant period under 2906.90 and the order having been already communicated, there was no question of revising or reviewing the said classification list. Against this letter dated 27-5-1988, the assessee went in appeal before the Collector of Central Excise (Appeals), Chandigarh who vide her order-in-appeal dated 4-4-1991 set aside the A.C's communication dated 27-5-1988 and decided that the said goods were classifiable under sub-heading 3003.30.
5. It was the Department's contention that the AC's appealable order had been passed earlier on 20-4-1988 and communicated on 9-5-1988. The subsequent letter dated 27-5-1988 was not in the nature of an appealable decision or order and merely a communication intimating the legal position to the party, the Collector therefore, should not have entertained the appeal against the said communication.
6. That apart the product was in the nature of bulk drugs as evident from the certificate from the Drug Controller certifying it to be a bulk drug.
7. The goods were cleared by the assessee in tankers. They were neither put-up in measured doses nor in packing for retail sale, nor for use in hospitals at the time of clearance from the factory. The said goods were cleared to other manufacturers for further manufacture of 'Dettol'. Therefore classification under sub-heading No. 2906.90 was appropriate and the appellate authority has erred in ordering the classification under 3003.30.
8. We observe that prima facie the Department has got a strong case on both counts. Once the A.C. had already passed an appealable order, any subsequent communication in the form of letter dated 27-5-1988 does not appear to be appealable decision or order.
9. That apart as regards the classification also it is observed that the definition of medicament as indicated in the Chapter Note 2 of Chapter 30 is to be kept in view and prima facie it does not appear to have been satisfied in view of the contention of the Department that the product is being cleared in tankers for manufacture of 'Dettol' by other manufacturers. In view of the above position, the Department's request for stay of the operation of the order is granted.