TMI Blog1998 (10) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Superintendent of Central Excise, Phagwara and for issue of orders or directions to give effect to the Final Order Nos. 105-106/92 dated 23-3-1992 passed by the Tribunal by which it was held that Di-Calcium Phosphate (Animal Feed Grade) manufactured by the applicants herein falls for classification under sub-heading 2302.00 of the Schedule to the Central Excise Tariff, Act, 1985. From March, 1992 onwards, the Department had been following the order of the Tribunal and assessing the above mentioned product in accordance with the Tribunal s order on classification. However, the Superintendent of Central Excise, Phagwara has now issued a show cause notice to each of the applicants proposing recovery of duty on the ground that Di-Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed or the Tribunal may direct implementation of its order dated 23-3-1992 by directing the Central Excise authorities to assess the product only under CET sub-heading 2302.00. 3. Opposing the stand of the applicants, learned SDR, Shri A.K. Madan submits that since there is no res judicata in fiscal matters and since the rival entries considered by the Tribunal in its Final Order referred to herein above were Chapters 23 and 31 while the Board was subsequently of the view that Chapter 28 would be attracted because Di-Calcium Phosphate is a separate chemically defined compound, there is no legality or infirmity in the show cause notices dated 28-5-1997 and it was open to the Department to issue such notices which would then be adjudicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot be invoked by the High Court merely because a trade notice was issued by the authorities on the subject and that the appropriate course for the assessee is to reply to the show cause notice enabling the authorities to record their findings and then to avail the process of appeal to the Tribunal and the Apex Court. 4.1 The case law relied upon by the learned Counsel for the applicants is distinguishable on facts - in the case of Indichem v. Union of India reported in 1996 (88) E.L.T. 35 (Guj.), the Hon ble High Court held that a circular issued by the CBEC under Section 37B was contrary to the decision rendered by the Tribunal that certain processes did not amount to manufacture within the meaning of Section 2(f) of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. I consider that ld. Counsel s arguments have a lot of force. Once the admitted position is that the classification of the product had been determined by the Tribunal and Final Order was passed and action was being taken accordingly, the department was required to continue to follow the same unless and until there was some change in the facts or the law. 8. Actually in terms of Section 35C(4) of the CESA, 1944, Save as provided in Section 35G or Section 35L, orders passed by the Appellate Tribunal on appeal shall be final i.e. Tribunal s orders are final subject only to reference/appeal. If therefore, the Department was aggrieved with the Tribunal's orders or had any reasons to propose and adopt a different view, the only course op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in my opinion, the applicant was justified in praying for a direction in terms of Rule 41 of the CEGAT (Procedure) Rules. I, therefore, direct the concerned officers to keep in view the Tribunal s Final Order Nos. 105-106/92, dated 23-3-1992 and take action accordingly. Sd/- (S.K. Bhatnagar) Vice President DIFFERENCE OF OPINION In view of the difference of opinion between the Member (Judicial) and the Vice President, the matter is submitted to the Hon'ble President for referring to the Third Member on the following points : Whether in the facts and circumstances of the case and the legal position highlighted before the Tribunal the applications were required to be accepted and an appropriate direction was required to be issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in view of the CBEC Order No. 47-1/97-CX, dated 3-3-1997 and this order passed by the CBEC, is quashed by the Hon ble Gujarat High Court in the case of Rayon Glues and Chemical Works v. U.O.I, vide order dated 17-3-1999 [2000 (117) E.L.T. 29 (Guj.)]. Therefore, the show cause notice be quashed. 14. Heard Shri Sumit K. Das, ld. JDR appearing on behalf of the Revenue, submitted that in the fiscal matters, there is no res judicata. He submits that before the Tribunal, the dispute was between Chapter 23 and 31 of the Central Excise Tariff and the Tribunal held that the goods, in question, were classifiable under Chapter 23 and the Tribunal had not considered the scope of Chapter 28 of the Central Excise Tariff in respect of the goods, in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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