Customs, Excise and Gold Tribunal - Calcutta
Metroark Ltd. vs Commissioner Of Central Excise on 16 December, 2002
Equivalent citations: 2003(160)ELT537(TRI-KOLKATA)
ORDER Archana Wadhwa, Member (J)
1. The short dispute involved in the present relates to the classification of simethicone USP. The appellants have claimed the classification of the said product under Heading 3003.20 whereas the Revenue has classified the same under Heading 39.10.
2. After hearing Shri K.K. Banerjee, ld. Advocate and Shri T.K. Kar, ld. SDR we find that during the course of adjudication before the Commissioner, the appellants had categorically pleaded that the Tribunal in their own case has decided the classification of simethicone USP as falling under Heading 30.03. The said decision is reported in 1999 (109) E.L.T. 282. The Commissioner in his impugned order takes note of the said decision of the Tribunal and also observes that the appeal filed by the Revenue against the said decision stands dismissed by the Hon'ble Supreme Court. In spite of that he is not following the Tribunal's order by observing that the appeal has been dismissed by the Hon'ble Supreme Court on the point of time bar and not on merits. As such, by following some earlier decision of the Hon'ble Supreme Court in the case of Hico Product Ltd. v. Collector of Central Excise reported in 1994 (71) E.L.T. 339 (S.C.), he holds against the appellants.
3. As regards the limitation, the Commissioner observed that the said assessee has deliberately misdeclared the impugned product and declared the duty at the rate lower than the applicable rate. They have wilfully suppressed the actual character and use of the said product before the Department with an intention to evade duty.
4. We are not in agreement with the Commissioner in respect of his findings on merits as also on the point of limitation. Undisputedly, the classification of the product stands decided by the earlier decision of the Tribunal in favour of the appellants and the Commissioner being an adjudicating authority lower in rank than the Tribunal was duty bound to follow the same. It is not open to the Commissioner to differentiate the said order of the Tribunal on the basis of Hico Product's order which in any case has been considered by the Tribunal while passing the earlier judgment and has been held to be non-applicable as per the findings contained in Para 3.1 of the said order. This reflects upon the anxiety of the Commissioner to confirm the demand without applying his mind and without reading the earlier order of the Tribunal in full, which clearly holds that Hico Product judgment is not applicable. In spite of that, the Commissioner has questioned the earlier order of the Tribunal and has held contrary to the appellants' claim.
5. In respect of the limitation also, we find that the period involved in the present appeal is 1-1-95 to 28-2-97 when the show cause notice was issued on 28-1-2000 i.e. beyond the normal period of limitation of six months. Reasoning adopted by the Commissioner nowhere refers to the actual facts as to how the appellant succeeds in mis-declaring or suppressing the relevant information from the Revenue. The Commissioner has used the general expression of the language for invocation of longer period without referring the peculiar facts of the case and without giving any findings as to which act of the appellant has resulted in mis-statement or suppression. We also note in the earlier case decided by the Tribunal, the impugned show cause notice was dated 20th January, 1989, covering period prior to the said date. When the show cause notice dated 20th January, 1989, was in respect of the same goods and referring to the same dispute i.e. classification, how it can be said that the Department was not aware of the manufacturing activities of the appellants or the use of product in question thus leading to any suppression and mis-statement on their part. We find no justification in invoking the longer period of limitation against the appellants. We expect the original adjudicating authority to follow the Tribunal's Order, at least, in respect of the same assessee where the disputed issues are decided and spare the assessee from the un-called pain of litigation. Appeal is thus allowed on merits as also on limitation.