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1. All these six applications for stay are filed against the Order-in-Original No. 16/99 Commr. Dated 7-7-1999 where under the Commissioner, Mumbai-VI confirmed duty amount of Rs. 42,07,807/-, imposed a penalty of equivalent amount under Rules 173Q, 209, 9(2) and 52A of the Rules and penalty of Rs. 10,00,000/- on the appellant in Appeal No. E/2934 namely Transcon International as well as Polybelt Technologies in Appeal No. E/2933. He ordered recovery of interest under Section 11AB. He also imposed penalty of Rs. 10,00,000/- on the appellant Kamal K. Kacholia in appeal No. E/2935 and Rs. 5,00,000/- on the appellant Rajan Nawal in appeal No. E/2955 and Rs. 3,00,000/- on the appellant Nirmaljeet Singh Panna in appeal E/3498 under rule 209A. He also imposed a fine of Rs. 5,00,000/-. Today applications for stay are filed under Section 35F of the Central Excise Act. During the course of the argument it was found that the appeals themselves could be disposed of on a short point and the matter is sought to be remanded. Therefore, the appeals themselves mere taken up after waiving pre-deposit and with consent of both sides.

5. The main thrust of the case is the finding given by the adjudicating authority as contained in para 87 of the adjudicating order. In the adjudicating order at paragraph 87 it has been held as follows :

"As regards the allegation regarding misclassification of the product "Nylon Sandwich Blelts" manufactured by M/s. Transcon & Polybelts, I hold that these belts are made up of one or more combination of material such as leather, textile fabrics and coated fabrics wherein nylon sheet was used as core material for reinforcing and the process of lamination was used for laminating the said material over one another. M/s. Transcon and Polybelt claimed the classification of the said product under chapter 3926.00, and full exemption from payment of duty under notification No. 53/88 (Articles of Plastics), whereas similar belts manufactured by M/s. N.T.B. were classified under chapter 42 or chapter 59 depending upon the material used, and duty was being paid on the same. Samples of the said belts were drawn and sent to Dy. Chief Chemist for testing. The Dy. Chief Chemist opined that the belt would merit classification as articles of leather/rubber, depending upon the material used and would fall under chapter 42/40 respectively. Thus, it is clear from the test result that M/s. Transcon and Polybelt had suppressed the facts and misled the deptt. by filing wrong classification lists with an intent to evade the payment of Central Excise duty. Shri Wangarajan, Manager of Excise of M/s. NTB in his statement dated 16-12-96 also admitted that classification of these belts under chapter 3926.00 was not correct as the similar belts manufactured by M/s. NTB had been classified correctly under chapter 40/59 depending upon the materials used. Further, the party questioned the veracity of Dy. C.C.'s report and submitted a copy of test report of the National Test House, Mumbai which was produced by them during the personal hearing which was sent to Dy. Chief Chemist who opined that the NTH test findings on the product under reference were not based on actual analysis of the composite product /finished products but on the basis of individual components purported to have been utilised in the manufacture of the same as is evident from the note appended therein. Dy. Chief Chemist's test findings were based on the actual analysis of the finished product. He has recalculated and confirmed that the test report given by him was correct and factual. It is noteworthy to mention here that the noticees did not challenge the test report of Dy. Chief Chemist on its receipt nor had requested for re-testing of the said sample by Chief Chemist, New Delhi as required under Rule 56(G) of Central Excise Rules, 1944. Therefore, I do not find any force in the test certificate of National Test House furnished by the party. In view of the above discussions, it is obvious that the assessee have suppressed the facts and have misled the deptt. by filing wrong classification list with an intent to evade the payment of Central Excise duty and proviso to Section 11A(1) of Central Excise Act, 1944 is applicable in this case and I hold accordingly."

6. The Commissioner being the adjudicating authority has quoted that the Deputy Chief Chemist has opined that the belt would merit classification as articles of materials used. He states further that it is clear from the test result that the appellants M/s. Transcon in Appeal No. 2934 and Polybelt in Appeal No. 2933 have suppressed the facts and misled the department in filing wrong classification list with an intent to evade duty. It is true that in the said paragraph the Commissioner has taken note of the deposition made by Manager-Excise. But one should make a note of the interesting arguments made by Shri Sridharan on a query made by the bench that supposing the Excise Manager had answered in an opposite way, would the department take the words of the Excise Manager. That is a very interesting point. In our view the classification has to be done by the adjudicating authority but the adjudicating authority may not know what are the contents of a particular product. The product has been examined by an expert called Deputy Chief Chemist. It is true that in this case the appellant has not asked for re-test. The appellant has not challenged the finding given by the Deputy Chief Chemist as to the composition of the product. It is not at all an issue before us in classification. The main question in this case is interpretation of rule 3(b) of the Interpretation Rules, viz. essential characteristics. In the course of arguments Shri Sridharan had handed over to us the opinion of Customs Harmonized System of the Customs Cooperative Council which has been extracted above. Unfortunately this was not brought before the adjudicating authority by the appellants at the time of adjudication. The case of Wash Udyog, Sawantwadi was not brought to the notice of the adjudicating authority. It is true that the adjudicating authority is expected to know the decisions of the Tribunal or the courts but yet it is equally the duty of the assessee who is conducting his case who ought to have brought to the notice of the adjudicating authority in respect of the matters which are in favour of the assessee. If these matters have been brought to the notice of the adjudicating authority, perhaps he would have dealt with it and come to a conclusion. We are therefore of the view that the matter requires redetermination de novo. We therefore set aside the impugned order and remand the matter back to the adjudicating authority for re determination who will do it as expeditiously as possible. Shri Sridharan on behalf of his client stated that the appellant will not use any dilatory tactics. The adjudicating authority shall decide the matter de novo after following the principles of natural justice.