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TMI Blog2011 (3) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hawaii chappals had not paid excise duty on the above products manufactured in their factory at Pollachi and removed to their customers during the period 15.12.1998 to 31.3.2003 and hence a show-cause notice dt.12.12.03 was issued invoking the extended period of limitation for recovery of duty on rubber sole sheets classifiable under CET sub-heading 4016.19 and on strap sheets classifiable under CET sub-heading 4008.29. The notice also proposed levy of interest and penal action on the assessees as well as on M/s.Kerala Footwear Products (hereinafter referred to as KFP) who supplied rubber compound mix required for the manufacture of both sole sheets as well as the strap plaps, and on Shri Joy Verghese, Managing Director of M/s.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on strap sheets and to re-determine the penalty on M/s.PFP, and Appeal Nos.E/744 & 745/05 were allowed. 2. Pursuant to the above order, the Commissioner took up the case for re-computation of duty liability and penalty. The assessees once again raised the issue of classification of strap sheets by contending that the strap sheets consist of a set of fully formed straps for Hawaii chappals loosely held together and would therefore fall for classification under CET sub-heading 6401.92 which covers parts of Hawaii chappals of sub-heading 6401.13 , relying upon the decision of the apex court in Phoenix International Ltd. Vs Commissioner of Customs, Raigod [2001 (134) ELT 593 (SC)]. The assessees also contended that Section 11AC pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata so as to preclude the remanding court from reopening it at the subsequent stage of the same continuing proceedings even when the law underlying remand order is differently interpreted by the larger Bench or by the Supreme Court, is distinguishable for the reason that, in that case, the issue as to whether the word partition in Section 38 (7) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 did not cover partition of the joint family property, as such member cannot be said to have acquired title to the property for the first time under such partition, was remanded to the Tahsildar for enquiry, holding on the authority of Salubai s decision in Smt.Salubai Vs Chandu [1966 Mah.L.J 289] that claims for possession of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea for reconsideration of the classification is permissible in law is also distinguishable as the Supreme Court was hearing a review petition while the Tribunal has no power of review. 5. The decision of the apex court in Flex Industries Ltd. Vs CCE Meerut [2006 (199) ELT 193 (SC)] cited by learned counsel for the assessees is also not applicable to the facts of the present case for the reason that the apex court itself, in earlier proceedings, had directed the assessees to raise the issue not involved by way of a rectification application, and the Tribunal rejected the application and it is in this context that the apex court held that the appellants should have an opportunity of agitating the issue after the remand from the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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