TMI Blog1995 (3) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit amounting to Rs. 13,925/- was disallowed because certain gate passes in regard to Aanthranilic Acid which is classifiable under Chapter Heading 2922.00 showed to have been classified under Heading 2942.00. 2. Ld. Advocate for the appellants submitted that when the appellants started purchasing these chemicals it was discovered that they were receiving gate passes for these items under Heading 2942.00 as well as under 2916.00. The declaration therefore mentions Headings 2942.00 and 2916.00. Subsequently they discovered that a manufacturer, M/s. Span Chemicals, in the jurisdiction of Surat Collectorate was classifying this product under Heading 2942.00. Subsequently it was discovered that sub-heading also mentioned as 2922.00 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the procedural safeguards provided in the proviso to Section 35A of Central Excises and Salt Act do not appear to have been followed. 7. The question whether Tribunal could enhance assessment in an appeal filed by assessee came up for determination before Hon ble Supreme Court in case of State of Kerala v. M/s. Vijaya Stores - reported in AIR 1979 SC 355. Sub-section (4) of Section 39 of Kerala General Sales Tax Act, 1963 empowers Tribunal, after giving a party reasonable opportunity of being heard, to confirm, reduce, enhance or annul the assessment or penalty or both in case of Order of assessment or penalty. The Hon ble Supreme Court held, The power to enhance the assessment must be appropriately read as relatable to an appeal or cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax, AIR 1958 Bom. 143, citing the principle that Apart from statute, it is elementary that if a party appeals, he is the party who comes before the Appellate Tribunal to redress a grievance alleged by him. If the other side has any grievance, he has a right to file a cross-appeal or cross-objections. But if no such thing is done, the other party, in law, is deemed to be satisfied with the decision. He is, of course, entitled to support the judgment of the first officer on any ground open to him, but he is not entitled to raise a ground so as to work adversely to the appellant and in his favour. 9. In case of Jawanmal Gishulal v. CCE - reported in 1988 (33) E.L.T. 724 (T), the Tribunal in case of Gold (Control) Act, 1968, which has provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 173B(2) provides that Proper Officer shall after such enquiry as he deems fit approve the classification list submitted by the assessee with such modifications as are considered necessary. Proper Officer has been defined in Rule 2(xi) as the officer in whose jurisdiction the premises of the producer of any excisable goods are situated. In this view of the matter Excise Authorities in Udaipur could have no jurisdiction to decide classification of a product manufactured by the assessee at other places to whom the officer had no jurisdiction. This view was held by Tribunal in case of CCE, Patna v. Telco Ltd. - reported in 1988 (34) E.L.T. 702 (T). Similar view was held by Tribunal in case of CCE v. Hindustan Lever Ltd. - reported in 1990 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, therefore, declaration was not required merely of a change in tariff heading. In case of Colgate Palmolive (I) Ltd. v. CCE, reported in 1995 (75) E.L.T. 689 (T), the Tribunal held that when declaration has been given indicating description of the input as `perfume and the description in the gate pass also indicated that description, it cannot be held that declaration does not cover the input. Tariff classification is not in the hands of the appellants and disparity in tariff classification between declaration and gate pass cannot have the effect of denying substantive benefit as long as both tariff headings are eligible for modvat credit as per notification issued under Rule 57A. 13. Considering the legal position as set out above I c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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