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COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III Versus M/s TIKITAR INDUSTRIES - 2012 (2) TMI 397 - SUPREME COURT OF INDIA - Central Excise
Maintainability of appeal - Revenue is in appeal against order of rejection of appeal by Tribunal – Tribunal confirmed the order of first appellate authority regarding classification of `Bitulux Insulation Board' under Chapter Sub-heading 4407.10 at nil rate of duty - Held that:- Since the revenue has not questioned the correctness or otherwise of the order passed by the first appellate authority dated 16.5.1997, setting aside the order of Asst Commissioner (Adjudicating Authority) it may not be open for the revenue to contend that the adjudicating authority was justified in issuing the impugned show cause notices and also the further confirmation of said notices vide orders passed by the adjudicating authority, the appellate authority and the Tribunal. Therefore, revenue would not be entitled for any relief – Appeal dismissed.
.............. ufacturing activity. 7. Since the revenue has not questioned the correctness or otherwise of the findings on the conclusion reached by the first appellate authority vide its order dated 16.5.1997 in GS/132/B.III/97, it may not be open for the revenue to contend that the adjudicating authority was justified in issuing the impugned show cause notices and also the further confirmation of said notices vide orders passed by the adjudicating authority, the appellate authority and the Tribunal. 8. In our opinion, without questioning the orders passed by the appellate authority in GS/132/B.III/97 dated 16.5.1997, the revenue would not be entitled for any relief, whatsoever. The appeals are, accordingly, dismissed, since the order passed by the Assistant Commissioner, holding the process as amounting to manufacture, had been set aside vide order dated 16.5.1997 in GS/132/B.III/97. C.A. No. 3863/2007 In view of the decision in C.A. Nos. 5562-5563 of 2003, this appeal is also dismissed.
H L Dattu and Anil R Dave, JJ. For Appellant Mr R P Bhatt, Sr. Adv. Mr Rajiv Nanda, Adv. Mr K Swami, Adv. Ms Shipra Ghosh, Adv. Mr A K Sharma, Adv. Mr B Krishna Prasad, Adv. For Respondent Mr Gaurav Goel, Adv. Mr Mahesh Agarwal, Adv. Mr Rishi Agrawala, Adv. Mr Amit Kumar Sharma, Adv. Mr E C Agrawala, Adv. JUDGEMENT C.A. Nos.5562-5563/2003 1. These appeals are directed against judgment and final order passed by the Central Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai (for short, the Tribunal ) in Appeal Nos. E/1784/97-Bom. and E/1785/97-Bom. dated 2.1.2003. By the impugned judgment and order, the Tribunal has confirmed the orders passed by the first appellate authority in setting aside the order which affirmed the show cause notices, issued by the adjudicating authority dated 1.2.1995, 10/17.4.1995, 3.11.1995, 19.6.1996 and 1.8.1996. 2. The assessee is a manufacturer of the Bitulux Insulation Board known as Tikki Exjo Filler , which falls under the Chapter Sub-heading 4407.10 of the Central Excise Tariff Act, 1985 (for short the Act ). The Tikki Exjo Filler is obtained by the process of bituminization of the Insulation board which also falls under the same Chapter Sub-heading 4407.10 of the Act. In this view, the assessee had filed a declaration under Rule 173G of the Central Excise Rules, 1944 ( the Rules for short) inter alia requesting the adjudicating authority to classify the product in issue as an item falling under Chapter Sub-heading 4407.10 of the Act at nil rate of duty on the ground that there is no manufacture involved in the process of obtaining Tikki Exjo Filler from bituminizing the Insulation board. The adjudicating authority vide its Order NO. 6/96-97 dated 19.3.1996, after a detailed discussion of the claim made by the assessee, had come to the conclusion that the product in question requires to be classified under Chapter Sub-heading 4407.1O of the Act and rate of duty would be levied at 10 per cent as the activity carried out by the assessee amounts to manufacture. Aggrieved by the aforesaid classification of the product in issue at 10 per cent rate of duty under Chapter Sub-heading 4407.10, the assessee had carried the matter in an appeal before the first appellate authority, who, by its order No. GS/132/B.III/97 dated 16.5.1997 had accepted the assessee s stand that the rate of duty leviable on the product in issue is nil rate of duty. For the reasons best known, that order of the appellate authority has attained the finality. 3. We need to notice yet another feature in these appeals that in the meantime, the revenue had issued several show cause-cum-Demand Notices to the assessee inter alia directing the assessee to pay the differential duty at 10 per cent, since t.................