Full Judgment Text
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CASE NO.:
Appeal (civil) 6621 of 1995
PETITIONER:
I.T.C. LIMITED
RESPONDENT:
COLLECTOR OF CENTRAL EXCISE BOMBAY
DATE OF JUDGMENT: 26/11/2002
BENCH:
SYED SHAH MOHAMMED QUADRI & ARIJIT PASAYAT
JUDGMENT:
JUDGMENT
2002 Supp(4) SCR 361
The following Order of the Court was delivered:
The appellant-assessee is common in these appeals which relate to the same
period, namely, 1986 to 1988, but arise out of orders of different Customs,
Excise and Gold (Control) Appellate Tribunals (for short, ’the Tribunal’)
and pertain to the jurisdiction of different original authorities. Civil
Appeal No. 6621 of 1995 is from the common order of the Tribunal, Bench at
New Delhi, in Final order Nos. 76-77/94-C and Misc. order No.44/ 94-C dated
February 28, 1994. That order was followed by the Tribunal Bench ,at Bombay
in Final Order No. E/616/98-C in Appeal No.792/94-C dated August 21, 1998,
from which Civil Appeal No. 498 of 1999 arises.
The common question that arises in these appeals is:
whether parts of cigarette packets-’slides’ and ’slits’ are excisable goods
within the meaning of the Central Excise Tariff Act, 1985.
The facts, which led to the filing of Civil Appeal No. 6621 of 1995, may be
noticed here.
The appellant filed classification list showing ’slides’ under heading
4818. 19 at ’nil’ duty. By notice dated 3rd April, 1986, the Superintendent
of Central Excise required the appellant to show cause as to why ’slides’
should not be classified under sub-heading 4818.90. On 17th April, 1986,
the appellant replied to the show-cause notice justifying classification as
claimed by it. The contention of the appellant was rejected by the
Assistant Collector, Central Excise. In appeal before the Collector
(Appeals) , opportunity was given for oral hearing as also for filing the
synopsis of submissions. In the synopsis of submissions, the appellant took
the plea that ’slides’ were not excisable. However, that point was not
adverted to by the Collector (Appeals), who held that no manufacturing
process was involved in the preparation of ’slides’ and they were not
marketable. However, he found that ’slides’ could be classified under sub-
heading 4818.90 and dismissed the appeal on February 11, 1988. Aggrieved by
that order, the appellant and the Revenue preferred appeals before the
Principal Bench of the Tribunal. The said Bench did not specifically record
any finding with regard to the manufacturing process; marketability of
’slides’ was assumed on the ground that they bear different name and are
covered by sub-heading 4818.90 and, thus, dismissed the appeals by order
dated 28th February, 1994, which was followed by the Tribunal Bench at
Bombay in regard to both ’slides’ and ’slits’ in the order under appeal in
Civil Appeal no. 498 of 1999 dated 21st August, 1998. Thus, the
classification of ’slides’ and ’slits’ is in issue in these appeals.
Mr. S. Ganesh, learned senior counsel appearing for the assessee, has
contended that as the Tribunal did not record any finding in regard to the
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manufacturing process and that the finding in regard to marketability is
based on surmises and not on any material, therefore, the orders under
appeal are liable to be set aside, so the appeals may be remanded to the
Tribunal for fresh disposal.
Mr. A.K. Ganguli, learned senior counsel appearing for the Revenue, on the
other hand, submits that the question of excisability of ’slides’ and
’slits’ was not raised in reply to the show-cause notice by the assessee;
it was raised for the first time in the synopsis of submissions, therefore,
the evidence with regard to the process of manufacture as well as
marketability could not be placed before the original authority and that on
the material before the Tribunal, findings recorded are correct.
Though we find sufficient force in the submission of Mr. A.K. Ganguli,
learned senior counsel appearing for the Revenue, that the question of
excisability of ’slides’ and ’slits’ was not taken in reply to the show-
cause notice, yet, having regard to the fact that the question was raised
in the synopsis of submissions before the appellate authority but was not
dealt with specifically by it; further, it was urged before the Tribunal
also and no objection was taken as to the maintainability of the contention
on the ground that it was not raised before the original authority, we do
not consider it appropriate to reject the appeals on that ground. In our
view, interests of justice would be met if the orders under appeal,
confirming the orders of Collector (Appeals), which do not specifically
record the material finding, are set aside and the cases are remanded to
any of the appellate authorities for disposal of the cases afresh, after
giving opportunities to both the parties to lead evidence, if any.
We, therefore, set aside the orders under challenge in these appeals,
remand the cases to the Commissioner (Appeals), Meerut-I, Uttar Pradesh,
who shall dispose of the appeals, in the light of the observations
contained hereinabove and in accordance with law.
In as much the necessity of remanding the cases has arisen because of the
assessee not taking the plea before the original authority, we direct the
assessee to pay costs to the respondent, quantified at Rupees fifteen
thousand within two weeks.
The civil appeals are, accordingly, allowed.