Custom, Excise & Service Tax Tribunal
C.C.E., Chandigarh vs M/S J.B.J. Perfumes Pvt. Ltd on 28 October, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-III Date of hearing/decision: 28.10.2009 Central Excise Appeal No.117 of 2006 Arising out of the order in appeal No.373-CE/CHD/2005 daed 18.10.2005 passed by the Commissioner (Appeals), Central Excise, Chandigarh. For Approval and Signature: Honble Shri M. Veeraiyan, Member (Technical) Honble Shri D.N.Panda, Member (Judicial) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes C.C.E., Chandigarh . Appellant Vs. M/s J.B.J. Perfumes Pvt. Ltd. . Respondent
Appearance:
Shri S.R.Meena, Authorized Departmental Representative (SDR) for the Revenue and Shri V.R. Sethi, Advocate for the respondents Coram: Honble Shri M. Veeraiyan, Member (Technical) Honble Shri D.N.Panda, Member (Judicial) Oral Order No._____________________ Per D .N. Panda:
Notice was issued by Superintendent on 8.6.2005 proposing the goods to be covered under Chapter Sub-Heading No.3303.00.50 with effect from 1.3.2005. By such proposition, the goods which were manufactured and earlier classified under Chapter 33 by the respondent became liable to excise duty at the rate of 16% on MRP basis. Against that notice, the respondent filed appeal before the learned Commissioner(Appeals) claiming entitlement to the benefit of Notification No.50/2003-CE dated 10.6.2003 contending that even if the goods manufactured by them are classifiable under Chapter Sub-Heading 3303.00.50 by new tariff list, such benefit cannot be denied. Learned Commissioner (Appeals) without having any technical report before him and also without any examination in detail, abruptly came to the conclusion that the respondent is entitled to the Notification benefit as claimed by the respondent.
2. For the above conclusion of the learned Commissioner (Appeals), Revenue is in appeal before us today.
3. Revenues principal grievance is that the product calls for classification under Sub-Heading 3303.00.50 with effect from 1.3.2005. Such legislative mandate cannot be ignored without testing material on the touchstone of law. But the respondent supports order of learned Appellate Authority below. When the learned Commissioner(Appeals) did not examine the material goods technically and did not find the nature of substance/ingredient used therein and also not examined the conditions of the Notification conclusion drawn in favour of the respondent is unsustainable. Therefore, the matter calls for testing in the light of the legislative mandate for classification of the goods appropriately under Sub-Heading 3303.00.50 with effect from 1.3.2005. We may state that the Appellate order being cryptic, we are compelled to remand the matter to the learned Adjudicating Authority/Assistant Commissioner/Deputy Commissioner as the case may be to grant fair opportunity of hearing to the respondent and examine threadbare contents of the product of the respondent. If necessary the authority may call for technical test report and ascertain proper classification according to law. If that is done, applicability of Notification benefit shall be subsequent question for his decision. He should put the Notification benefit into test and call for the defence of the respondent if any for appropriate classification of the goods.
3. In the result, we remand the matter to the learned Adjudicating authority/Assistant Commissioner/Deputy Commissioner as the case may be for completing the adjudication, following due process of law. Respondent is at liberty to raise all legal pleas permissible in the course of fresh adjudication. Consequently, the impugned order is set aside and the appeal is allowed by way of remand.
(D.N.Panda) Member (Judicial) (M. Veeraiyan) Member (Technical) scd/ 3