Customs, Excise and Gold Tribunal - Tamil Nadu
Eta Engineering Ltd. vs Commissioner Of Central Excise on 16 September, 2004
Equivalent citations: 2005(179)ELT188(TRI-CHENNAI)
ORDER P.G. Chacko, Member (J)
1. After examining the records and hearing both sides, we find that these appeals themselves require to be finally disposed of. Accordingly, after dispensing with pre-deposit, we take up the appeals.
2. The original authority had confirmed demands of duty on "Air Handling Unit" manufactured and cleared by them during the periods March, 2000 to March, 2001 and April, 2001 to February, 2002. Against those orders, the assessee preferred appeals to the Commissioner (Appeals) and also filed applications therein for waiver of pre-deposit and stay of recovery. Those applications were disposed of by the Commissioner (Appeals) in a common interim order wherein the assessee was directed to pre-deposit Rs. 30 lakhs and waiver and stay were granted in respect of the balance amount. The assessee deposited only Rs. 15 lakhs, which was noted by the Commissioner (Appeals) but was not considered to be due compliance with his direction. Consequently, the assessee's appeals got rejected on the ground of non-compliance with Section 35F of the Central Excise Act. Hence the appeals before us.
3. Heard both sides. Ld. Counsel for the appellants submits that they have a strong prima facie case on the strength of Board's Circular No. 666/57/2002-CX, dated 25-9-2002, wherein "fan or blower for circulating the air" was accepted as an essential element of Air-conditioning machine. Ld. Counsel submits that "fan or blower for circulating the air", otherwise called "Air Handling Unit" was distinct from an Air-conditioning machine and hence required to be assessed to duty as a part of Air-conditioning machine. The original authority assessed it as Air-conditioner and demanded duty on that basis. It is, further, pointed out that the same original authority has subsequently vacated a similar demand in view of the above circular of the Board. A copy of the cited decision of the original authority (Order-in-Original dated 22-7-2003) has been placed on record. We have heard the SDR also, who reiterates the findings in the impugned order.
4. After a perusal of the Board's circular, we find that the appellants have a strong prima facie case against the demand of duty raised on AHU, treated as Air-conditioner. Therefore, it is not just or fair to ask the assessee to make any further deposit for the purpose of Section 35F of the Central Excise Act. The deposit of Rs. 15 lakhs already made will, however, remain with the department till final disposal of the appeals on merits by the Commissioner (Appeals).
5. In the result, after setting aside the impugned orders, we direct the learned Commissioner (Appeals) to dispose of the assessee's appeals on merits in accordance with law and the principles of natural justice, without insisting on any further deposit.
6. The appeals before us stand allowed by way of remand in the above terms.