TMI Blog2009 (5) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... sides imposing penalty of Rs. 2 lakh upon Shri V.L Pandey, Head Operations of the appellant-company. 3. Since common questions of law and facts arise in both these applications, they were heard together and are being disposed of by this common order. 4. We were actually inclined to dispose of the appeals on merits, however, learned Advocate for the appellants stated that he would like to argue the appeals on the basis of various reported decisions in support of his contentions and therefore, today only the stay applications be disposed of. We are therefore constrained to defer disposal of the appeals. While dealing with the application for stay, as both the parties have addressed us on the point of classification, it would necessary to deal with the same for the purpose of ascertaining whether the appellants have made out prima facie case for the grant of stay. 5. The dispute in the matter relates to classification of excisable product. According to the Department the product is classifiable under chapter 8536.90.90 of the tariff, while it is the contention of the appellants that it falls under Heading 4810.39.20 and 4805.93.00. The authorities below have classified the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the appellants have already deposited Rs. 7,50,000/- by the appellants firm and Rs. 20,000/- by the individual appellant in terms of the Commissioner (Appeals) order in relation to the product manufactured at Sonepat when the Department itself in earlier years in respect to the same product manufactured from the appellants factory situated in Karnataka had accepted the classification as claimed by the appellants. In that connection attention was sought to be drawn to the orders dated 25th June, 1991 passed by the Collector, Bangalore in Appeal No. 118/91, dated 18th June, 1991, by Assistant Collector of Central Excise, Mysore and order-in-original dated 29th March, 2004 by the Additional Commissioner of Central Excise, Mysore. Further, placing reliance in the decision of the Apex Court in the case of Damodar J. Malpani v. Collector of Central Excise reported in 2002 (146) E.L.T. 483 (S.C.), Mallur Siddeswara Spinning Mills (P) Ltd. v. C.C.E., Coimbatore reported in 2004 (166) E.L.T. 154 (S.C.), Marsons Fan Industries v. Commissioner of C.Ex., Calcutta reported in 2008 (225) E.L.T. 334 (S.C.) and unreported decision of the Apex Court in M/s. Unipatch Rubber Ltd. v. C.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternational Tobacco Co. Ltd., reported in 2008 (231) E.L.T. 207 (S.C.), C.K. Gangadharan v. Commissioner of Income Tax, Cochin reported in 2008 (228) E.L.T. 497 (S.C.), Commr. of C.Ex. Cus., Aurangabad v. Greaves Cotton Ltd., reported in 2008 (225) E.L.T. 198 (Bom.) and Commissioner of Service Tax, Chennai v. Lumax Samlip Indus. Ltd., reported in 2007 (8) S.T.R. 113 (Mad.) submitted that there is no bar for the Department to take a view different from the one taken in the earlier matter of the same assessee in case of classification of the product manufactured by such assessee whenever such a different view is warranted by the facts of that case. He further submitted that the nature of the product manufactured by the appellants clearly justifies the classification thereof under sub-heading 8546. He also drew our attention to the undisputed finding arrived at by the authorities below to the effect that the goods manufactured by the appellants have to undergo fourteen tests in order to acquire the essential character of the final products i.e. insulator paper boards, and therefore the same cannot be considered as the products classifiable under sub-heading 4805. Referring to the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent assessees in relation to the same product manufactured by them and in the absence of such explanation, the view once taken in relation to the classification of such product would prevail unless there are sufficient reasons to take a different view. 13. In Mallur Siddeswara Spinning Mills (P) Ltd. case, while dealing with the similar issue after taking note of earlier decisions of the Apex Court in Damodar J. Malpani as well as in the case of Steel Authority of India v. Collector of Customs, Bombay reported in 2000 (115) E.L.T. 42 (S.C.), it was observed thus - To these principles there can be no dispute. However, except for making a general statement that nobody else has paid duty, no particulars or details are given. On the contrary, it has been pointed out to us that the Department had issued a show cause notice to another party also in respect of a generator set assembled and installed in their factory. However, in that case the Tribunal concluded that the longer period of limitation was not available and set aside the demand. Had the Appellants pointed out details of the other parties who been allowed, according to the Appellants, to install a generating set the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the product manufactured by the appellant was subjected to any test, as has been done in the case in hand by the adjudicating authority before arriving at the finding that the paperboard manufactured by the appellants has to go through fourteen tests before acquiring the character of final product i.e. insulation paperboard, and secondly that the product is sold in the market as the electrical grade insulation board. That apart, none of the decisions are on the point as to whether the department is entitled to take view different from the one taken in the earlier matter which had been confirmed only up to the stage of Commissioner (Appeals) and not beyond that. In this regard, the decisions sought to be relied upon by the learned DR are certainly of great importance. 17. In C.K. Gangadharan case the matter was referred to the Larger Bench of the Apex Court for the decision on the point as to whether the Revenue is precluded from taking view different from the one taken by it earlier merely because the earlier view was not challenged before higher authorities. In that connection the Apex Court noted the decision in Bharat Sanchar Nigam Ltd. and Anr. v. Union of India and Ors re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India [2003 (3) SCC 239] related to the year 1988. Admittedly, the present dispute relates to a subsequent period. Here a coordinate Bench has referred the matter to a Larger Bench. This Bench being of superior strength, we can, if we so find, declare that the earlier decision does not represent the law. None of the decisions cited by the State of U.P. are authorities for the proposition that we cannot, in the circumstances of this case, do so. This preliminary objection of the State of U.P. is therefore rejected . [Emphasis supplied]. 18. It was further ruled therein that- we hold that merely because in some cases the revenue has not preferred appeal that does not operate as a bar for the revenue to prefer an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a pronouncement by the higher Court when divergent views are expressed by the Tribunals or the High Courts . 19. Being so, it is apparent that there is no bar as such for taking an appropriate stand for the Revenue in appropriate cases on the basis of the materials placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-heading 8546 forms part of the Chapter 85 which deals the subject of Electrical insulators of any material and parts thereof; sound recorders and reproducers, television image and sound recorders and reproducers, and parts and accessories of such articles. 20.5 As against the same, the sub-heading under Chapter 48 relates to paper and paperboard; articles of paper pulp of paper or of paperboard. 21. If one analyses the sub-heading 4805, undoubtedly one has to read the same along with Note 3. The Note 3 specifically provides the processes which the product should undergo in order to claim classification under the said sub heading. It is the contention on behalf of the appellants that it is the calandering process or similar thereto that is undergone by the product manufactured by the appellants. Even assuming the contention to be true, it cannot be ignored that the product manufactured by the appellants undergoes fourteen tests to acquire the finality of manufacture of that product, i.e. insulating press board and this fact is not in dispute. Prima face, therefore, it is difficult to accept the contention on behalf of the appellant that the product manufactured by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided in the facts situation in relation to the each of products. Considering the same and for the reasons recorded above, prima facie, we find it difficult to accept the contention on behalf of the appellants regarding the classification of the product manufactured by the appellants. 24. In this regard, reliance in the decision in the matter of Bakelite Hylam Ltd., (supra) case and Senapathy Symons Insulations (P) Ltd., case is certainly justified. In the Bakelite Hylam Ltd., case it was held - 28. Industrial laminated sheets which are paper-based are used for electrical insulation. Glass epoxy laminates are also used as electrical insulators. The New Tariff Act contains a separate Section XVI which deals, inter alia, with electrical equipment and parts thereof. Chapter 85 which forms part of Section XVI deals with electrical machinery and equipment and parts thereof. Entry 8546 deals with electrical insulators of any material . There is, therefore, a specific entry in the New Tariff Act dealing with electrical insulator of any material. Under Chapter 39 which deals with plastics and articles thereof, Chapter Note 2(n) which is set out earlier, provides that this Chapter d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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