Custom, Excise & Service Tax Tribunal
Hindustan Lever Ltd vs Cce Chennai on 1 February, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/2658/03 Mum
Arising out of Order-in-Appeal No. 43/2003 (M-III) dated 19.6.2003 passed by the Commissioner of Central Excise (Appeals), Chennai.
For approval and signature:
Shri. Ashok Jindal, Member (Judicial)
Shri. P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Hindustan Lever Ltd.
:
Appellant
Versus
CCE Chennai
Respondent
Appearance Shri M.H. Patil, Advocate for appellant Shri Kishori Lal, SDR For Respondent CORAM:
Shri. Ashok Jindal, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical) Date of Hearing : 01.02.2011 Date of Decision : 01.02.2011 ORDER NO.
Per : Ashok Jindal This is a second round of litigation. In the first round, this Tribunal vide its order dated 22.01.2002 has remanded the matter back to the Commissioner (Appeals) for fresh decision in accordance with law after extending a reasonable opportunity to the appellant and then pass afresh order dealing with all the issues raised by him during the proceedings. In remand proceedings, the Commissioner (Appeals) has passed the following order:-
4. Aggrieved by the impugned order the appellant filed an appeal and a stay petition. My predecessor in his order-in-appeal No. 41/01 dt. 22.4.2001 has held that, I have carefully gone through the records of the case and their submissions made during the personal hearing as well as grounds of appeal. I have given my earnest consideration to the points urged and evidences on record. The Asst. Commissioner has analyzed each and every point in his order in the findings portion step by step and in detail. Hence, I do not want to repeat and I find no infirmity in his order.
In view of the above discussions, I reject the appeal.
5. Aggrieved by the order of the Commissioner (Appeals) the appellant filed an appeal before the CEGAT WZB Mumbai. CEGAT in their order C I/209-211/WZB dated 22..1.02 has held that The Commissioner (Appeals) was required to independently discuss and analyse the submissions made by the assessee before him and apply his mind independently to the various issues raised and the findings as recorded above cannot be considered as a speaking order. We therefore set aside the impugned order and remand the case back to the Commissioner (Appeals) for fresh decision in accordance with law, after extending a reasonable opportunity to the appellants and then pass fresh orders dealing with all the issues raised before him during the proceedings. The appeal is thus allowed by remand. Accordingly the appeal is taken on record and assigned Appeal No. 34/2002 M III.
6. At this point of time, this issue is no longer res integra. I have before me the decision of the Honble Supreme Court in Alpine Industries vs. CCE New Delhi 2003 (152) ELT 16 (SC) wherein it is held as follows :
Cream Skin care cream Lip salve used for care of the lips Product is essentially a protective / preventive preparation for chapping of lips, though incidentally it may have some curative effect on cracked and chapped lips Product Lip salve is not uitable for use only for soldiers operating in high altitude areas but it is of use for every one as protection from dry, cold weather or sun rays Classifiable as a skin care cream under Heading 33.04 of Central Excise Tariff Act, 1985 as per Note 2 read with Note 5 of Chapter 33 ibid and not as medicament under Heading 30.03 ibid Majority opinion of the Tribunal upheld.
7. Respectfully following the Honble apex courts decision I uphold the order of the Lower Authority wherein the classification of the product vaseline Lip Guard has been ordered under Chapter sub heading 3304 of CETA 1985. The appellant is liable to pay the differential duty of Rs.1,73,45,647.00 (Rupees one crore seventy three lakhs forty five thousand six hundred and forty seven only).
Appeal Rejected.
2. Aggrieved by the said order, the appellant is again in appeal against the legality of the order and merits of the case.
3. Shri. M.H. Patil, learned Advocate for the appellant submitted that apart from the merit he wants to bring to the notice of the Tribunal that despite direction in the earlier round of litigation, the lower appellate authority has passed the impugned order without any application of mind which is coming out from the order itself as the lower appellate authority has not given any findings on the issue. Hence, the impugned order be set aside and the matter sent back to the lower appellate authority to pass a speaking order like the issue involved, view taken and relied upon judgments, thereafter to arrive at a decision. He also prayed that if this Tribunal satisfies with the speaking order then he will take the liberty to make his submission on merits.
4. On the other hand, the learned SDR appearing on behalf of the Revenue submitted that the order passed by the lower appellate authority is a speaking order and within the purview of the law and there is no infirmity in the said order and the same has been passed under the direction of this Tribunal.
5. Heard and considered.
6. After considering the arguments advanced by the learned Advocate, before going into the merits of the case, we have gone through the impugned order passed by the lower appellate authority. The issue is whether the impugned order is a speaking order or not?
7. On careful examination of the impugned order we find that after recording the facts, he has also reproduced the order dated 22.01.2002 of this Tribunal. Immediately thereafter he arrived at a decision that At this point of time, this issue is no longer res integra. We are very surprised to know that how the issue is no longer res integra when the Commissioner (Appeals) has not discussed the facts of the case in hand, what is the issue involved etc.
8. When the learned DR submitted that this order is a speaking order, we are not sure whether the learned DR has gone through the impugned order thoroughly or not. Merely supporting the impugned order, will not give any benefit to the Revenue. If we take the reverse position in this case where this type of order has been passed by the lower appellate authority in favour of the assessee and the department is in appeal, the learned DR will take his stand that this order is not a speaking order. There should not be two standards of arguments. The duty of the DR is to assist the Court, not to merely support an order which is not in accordance with law. When it is apparent from the record that the impugned order is not a speaking order, the DR should be fair enough to accept that this is not a speaking order. Hence, we do not find any force in the argument of the learned DR saying that it is a speaking order.
9. As discussed herein above when there is no issue is framed and without discussing the merits of the case, the lower appellate authority has arrived at the decision that the issue is no longer res integra is not a speaking order. In that view, without going into the merit of the case, we find that the impugned order is not sustainable in the eyes of law. Hence, the same is set aside. The appeal is allowed by way of remand to the lower appellate authority to pass a detailed order after framing the issue in the facts of the case and before arriving at a decision like the issue is no longer res integra he should comment on the issue how the facts of this case are similar to the decision on which the lower appellate authority is relying, after giving a reasonable opportunity to the appellant to present their case thereafter the lower appellate authority will pass an appropriate order.
10. With these directions, the appeal is allowed by way of remand by setting aside the impugned order.
(Pronounced in open Court) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) nsk 6