1999 (9) TMI 87 - SUPREME COURT

Whether he NES yarn ought to have been correctly classified under old Tariff Item 19-I(2)(F)?

Held that:- The levy of excise duty on the basis of an approved classification list is the correct levy, at least until such time as to the correctness of the approval is questioned by the issuance to the assessee of a show cause notice. It is only when the correctness of the approval is challenged that an approved classification list ceases to be such.

The levy of excise duty on the basis of an approved classification list is not a short levy. Differential duty cannot be recovered on the ground that it is a short levy. Rule 10 has then no application.

We are, therefore, of the opinion that the. judgment in Ballarpur Industries [1995 (1) TMI 71 - SUPREME COURT OF INDIA], which did not advert to Rule 173B, does not lay down the law correctly and it is over-ruled. The decision in Rainbow Industries [1994 (10) TMI 59 - SUPREME COURT OF INDIA], on the other hand, correctly lays down the law. It was delivered in the context of Rule 173C dealing with approved price lists and the provisions of Rules 173C and 173B are analogous.

We are informed that the position in law has. changed since the year 1995 or thereabout. We have not considered these altered provisions. Nothing that we have said in this judgment shall ipso facto apply thereto.The appeal is dismissed.