Customs, Excise and Gold Tribunal - Mumbai
Anil Starch Products Ltd. vs Commissioner Of Central Excise on 1 January, 2004
ORDER
C. Satapathy, Member(Technical)
1. Heard both sides. It has been argued on behalf of the appellants that the demand confirmed by the Commissioner under the impugned order is against the well settled legal position that once the classification list has been accepted and approved by the department, the demand has to be prospective in the case of change in classification. In this connection, the decision of the Apex Court rendered in the case of Collector of Central Excise v. Cotspun Ltd. -1999 (113) ELT 353 (S.C.) has been cited by the appellants. However, we observe that there has been a change in the legal position on account of retrospective amendment to Section 11A of the Central Excise Act, 1944 and the Apex Court has since rendered its decision on the issue in the case of ITW Signode India Ltd. vs. Collector of Central Excise - 2003 (158) ELT 403 (S.C.). In view of the said decision of the Apex Court in ITW Signode (Supra), the main basis of the appeal filed by the appellants does not survive as it has been held therein:-
1) By reason of the amended Act a provision has been made for reopening of approved classification lists. It is a procedural provision in terms whereof statutory authorities are required to determine as to whether the earlier classification was correctly done or not.
2) A statutory act may be enacted prospectively or retrospectively. A retrospective effect indisputably can be given in case of curative and validating statute.
3) Section 11A of the Act as amended is a valid piece of legislation.
2. The appellants have also stated that the Commissioner has not made available the asked for information and allowed inspection as requested under the appellants' letter dated 26.6.1997. As such, the appellants allege that the impugned order has been issued in violation of the principles of natural justice. We find that in reply to the appellants' letter dated 26.9.1997, a reply dated 18.12.1997 has been sent by the department under which some of the information required by the appellants has been provided. However, it is also clear therefrom that some information referred to in the show cause notice has been held back. As such, in the interest of justice, we set aside the impugned order and remand the matter to the adjudicating Commissioner for re-adjudication of the case. The appellants shall be provided necessary information/inspection of the material made use of in the adjudication proceedings and they shall be provided with a reasonable opportunity of hearing before passing a fresh speaking order.
The appeal is allowed by way of remand.
(Pronounced in Court on 1.1.2004 )