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HI-TECH ARAI LTD. Versus COMMISSIONER OF CENTRAL EXCISE, MADURAI

2008 (9) TMI 674 - CESTAT, CHENNAI

Scope of Remand - Order of Appellate Tribunal - classification dispute - Tribunal had remanded the classification dispute to the original authority for de novo consideration - Whether the Tribunal is correct in doing so? - E/681/2001 (Assessee) and E/591 & 592/2003 (Department) - 1064-1066/2008 - Dated:- 11-9-2008 - S/Shri P.G. Chacko, M. Veeraiyan, JJ. REPRESENTED BY : Smt. Pushya Sitaraman, Advocate, for the Appellant. Smt. R. Bhagya Devi, SDR, for the Respondent. [Order per : P.G. Chacko, Mem .....

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arts suitable for use solely or principally with the engines of Heading 84.07. In their reply to the show-cause notices, the assessee claimed classification under SH 8503.00 in respect of those goods which were cleared to be used as parts of generators (Heading 85.01) and under SH 8714.00 in respect of those goods which were cleared to be used as parts of motorcycles (Heading 87.11). The adjudicating authority rejected these claims and confirmed the Revenue s proposal for classifying the goods u .....

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the above rules shall be classified under the appropriate headings to the goods to which they are most akin. Therefore, on consideration of the rules of interpretation of tariff, it is clear that the item can be classified under more than one heading as hitherto done by the department. The department has re-opened the case for re­classification, but has not given reasons as to how the Heading 84.09 which reads part of Spark Ignition Engine is more appropriate than the other two sub-headings .....

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n fair opportunity of hearing. The appellants can produce any additional evidence to support their claim before the original authority and the said authority shall consider all the technical evidence that may be produced by the appellants to support their case. The appeals are thus allowed by way of remand. Pursuant to the above remand of the case, the original authority passed fresh orders, wherein the authority reaffirmed classification of the goods under SH 8409.00 as claimed by the Revenue. .....

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adjudicating authority had classified the same item under Heading 84.09 and raised a consequential demand of duty on the assessee and the appellate authority had sustained that decision vide Order-in-Appeal No. 27/2001 dated 29-3-2001, which is under challenge in the assessee s appeals before us. 3. Heard both sides. The learned SDR, in the Revenue s appeals, raises a question of law. As any decision on this question is bound to affect the assessee s appeals also, we have taken up the Reven .....

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nal s decision in Commissioner v. Ish Rolling Mills [2004 (167) E.L.T. 126 (Tri.-Del.), wherein it was held inter alia that the adjudicating authority could not go beyond the scope of the remand order passed by the Tribunal under Section 35C of the Central Excise Act. It is submitted by the learned counsel that there is no estoppel against law and, therefore, it cannot be said that the lower appellate authority erred in considering the claim of the assessee for classification of the goods under .....

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(supra) was affirmed by the Apex Court by dismissing the civil appeal filed by the party and the review petition subsequently filed by them vide 2002 (142) E.L.T. A182 (S.C). 4. After giving careful consideration to the submissions, we note that, in the present case, this Tribunal had remanded the classification dispute to the original authority for de novo consideration. We have already reproduced the operative paragraph of the remand order. It is abundantly clear from the remand order th .....

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, the case was remanded for de novo consideration and decision and the assessee was given liberty to produce any additional evidence to support their claim. The learned counsel has argued that it was an open remand and, therefore, it was open to the assessee to claim classification of the goods under a different heading before the lower authority. We are unable to agree with this proposal. The remand order is specific. The case before the Tribunal was remanded to the original authority. The case .....

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orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. Under the above provision, one option for the Appellate Tribunal in an appropriate case is to refer the case back to the authority which passed .....

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