Customs, Excise and Gold Tribunal - Tamil Nadu
Tamil Nadu Dadha Pharmaceuticals Ltd. vs Commissioner Of Central Excise on 23 January, 2007
Equivalent citations: 2007(120)ECC338, 2007ECR338(TRI.-CHENNAI)
ORDER P.G. Chacko, Member (J)
1. We are taking up this appeal for disposal pursuant to the Hon'ble Supreme Court's remand order dated 05.02.2003 in Civil Appeal Nos. 2123 - 2124 of 1994, wherein this Tribunal was directed to consider, and decide on, the question whether the lower appellate authority had jurisdiction to entertain the assessees' appeal or not.
2. The appellants were engaged in the manufacture of pharmaceutical products. There arose a dispute between them and the department as to whether they were eligible for exemption under Notification No. 116/69 dated 03.05.1969 in respect of their product viz DARZAMOL INJECTION I.V. for the period 1982-85. This issue was settled by the apex court in the above order in favour of the Revenue on merits and in favour of the assessee on limitation. By the apex court's decision on merits for the said period, Order-in-Original dated 28.10.1987 passed by the Principal Collector of Central Excise, Madras stood affirmed on merits.
3. The order impugned in the present appeal is one passed by the learned Collector of Central Excise (Appeals) in an appeal filed by the assessee against a demand of duty of Rs. 5,19,618.30 by the Assistant Collector. The Assistant Collector had demanded the duty in letter dated 03.05.1998, wherein an earlier request of the assessee for withdrawal of the demand pending appeal before the Tribunal against the Principal Collector's Order-in-Original dated 28.10.1987 was turned down. In the impugned order, learned Collector (Appeals) held that he had no jurisdiction to entertain the assessees' appeal against the Assistant Collector's letter dated 03.05.1986. The appellate Collector, therefore, did not consider the assessees' appeal on merits. Today, we are called upon to examine the question whether learned Collector (Appeals) was right, or not, in holding that he had no jurisdiction. In doing so, we have the advantage of a crucial finding recorded by the apex court in its order dated 05.02.2003. The relevant paragraph of the apex court's order is reproduced below:
It may also be noted here that in respect of the period from 1985 to 1988, demand of excise duty was raised, withdrawing the exemption, on March 7, 1988. The assessee preferred an appeal against the said demand before the Collector (Appeals) who, by his order dated November 30, 1988 dismissed the appeal taking the view that he had no jurisdiction to entertain the appeal. Dissatisfied with the said order of the Collector (Appeals), the assessee filed Appeal No. E/1329/89-C before the CEGAT. This appeal and the appeal arising out of the show-cause proceedings, being Appeal No. E/331/88-C, were disposed of by common order dated December 2, 1993, which is the subject matter of these appeals.
Obviously, their Lordships found that the Collector (Appeals) had passed the aforesaid order in an appeal filed by the assessee against proceedings dated 07.03.1988 of the lower authority. It appears from the records that the Assistant Collector had issued a letter dated 07.03.1988 to the appellants, which reads as under:
C. No. V/14E/Ch.30/17/7/86 VC Date: 07.03.1988 To M/s. Tamilnadu Dadha Pharmaceuticals Limited Dadhanagar Madras-74. Gentlemen,
Sub: Central Excise - PPM - Chapter 30 - M/s. Tamil Nadu Dadha Pharmaceuticals Ltd., Classification Lists provisionally approved finally approved duty payable demanded.
Ref: This Office letter C. No. V/14E/17/3/85 VC dt.6.6.86.
Your classification lists Nos: 18/83-84 for the product DARZAMOL INJ 100 ml (Sl.No. 16) and 3/86-87 are approved provisionally pending eligibility of the exemption claimed under the Notification No. 116/69 dated 3.5.1969 under Tariff item No. 14E and pending classifiability of the products under the sub-heading No. 3003.11 with nil rate of duty.
The Principal Collector of Central Excise who examined the issue has held in Order-in-Original dated 28.10.1987 that the product DARZAMOL INJECTION I.V is not entitled to exemption under Notification No. 116/69 dt.3.5.'69 as the ingredient dextrose content is not a pharmaceutical necessity and is not therapeutically inert. In compatibility with the Collector's Order Serial No. 16 of your Classification List No. 18/83-84 is hereby finalised without granting exemption under the Notification No. 116/69.
The Classification List No. 3/86-87 is finally approved as such except for item No. 16 viz., DARZAMOL INJ. The Sl.No. 16 is classified under the sub-heading No. 3003.19 with duty @ 15% adv. in conformity with the Order-in-Original of the Collector.
The duty amount of Rs. 591618.30 payable on the clearances subsequent to the period covered in the order-in-original shall be paid by you immediately.
Yours faithfully, sd/-
(M. AJIT KUMAR) ASSISTANT COLLECTOR Going by the finding recorded by the apex court, we note that the assessees' appeal before the appellate Collector was against the decision contained in the Assistant Collector's letter dated 07.03.1988 ibid. At this juncture, we have to determine as to whether this decision of the Assistant Collector was appealable to the appellate Collector. The Assistant Collector's letter dated 07.03.1988 contained two decisions against the assessee viz.(i) finalising classification of the goods in Classification List No. 3/86-87 thereby holding the goods to be classifiable under SH 3003.19 attracting duty at 15% ad valorem (ii) determining the duty of excise at Rs. 5,91,618.30 to be paid by the assessee consequentially for the period 1985-88, subsequent to the period covered by Order-in-Original dated 28/10/87 of the Principal Collector. Either of these decisions of the Assistant Collector was appealable under the Central Excises and Salt Act, 1944. Hence learned Collector (Appeals) should have assumed jurisdiction and rendered a decision on merits on the issues raised by the party. We have arrived at this conclusion after hearing both sides and considering their submissions.
4. In the result, the impugned order is set aside and the case is remanded to the jurisdictional Commissioner of Central Excise (Appeals) for a reasoned order on merits in the appeal filed by the assessee against the Assistant Collector's decision communicated in letter dated 07.03.1988. Needless to say that the assessee shall be given a reasonable opportunity of being heard by learned Commissioner (Appeals) before passing final order.
5. The present appeal stands allowed by way of remand.
(Dictated and pronounced in open court)