Customs, Excise and Gold Tribunal - Mumbai
Unique Poles & Tubes vs Commissioner Of Central Excise, Pune-I on 13 September, 2001
Equivalent citations: 2002(149)ELT547(TRI-MUMBAI)
JUDGMENT
Gowri Shankar, Member (Technical)
1. Appeal taken up for disposal after waiving deposit.
2. The appellant manufactured poles to be used in the transmission of electric energy. The process by which it made these poles consisted of welding together three lengths of mild thread pipes and some other process. Notice issued to it proposed classification of these pipes under heading 7308.90 as structures, and demanded duty on them. Adjudicating on the notice, the Additional Commissioner after giving an opportunity to the manufacturer to answer this point classified the goods under 7306.90. After having done so, he has held the process to be manufacture. The assessee did not comply with this order, The Commissioner therefore dismissed the appeal.
3. The assessee appealed this order to the Commissioner (appeals). In the stay application that was filed in that appeal, it contended that process of making poles did not amount to manufacture citing in support Tribunal's decision in CCE v. Vikrant Engineers 1999 (109) ELT 440. After considering this decision and also pointing out a contrary decision of the Tribunal in Hindustan Poles Corporation v. CCE 2000 (37) RLT 763 (which incidentally did not take note of the decision in CCE v. Vikrant Engineers) in the stay order, the Commissioner notes the presence of this conflicting decision, but ordered deposit of the entire duty.
4. If there are two decisions of the same Court (in this case the Tribunal) holding diametrically opposite view on one issue, it can be reasonably said that the law in this issue is unsettled. It is required to be settled by the larger bench which will decide what is the correct view. As the matter stands today, the assessee is entitled to the benefit in the unsettled position of law.
5. Accordingly we allow the appeal and set aside the Commissioner (Appeals)'s order. He shall dispose of the appeal without insisting on any deposit in accordance with law.