TMI Blog2010 (12) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... to the decision of the Larger Bench on the same issue in favour of other 100% EOUs - Considering the fact that the issue was no longer res-integra and stood decided in favour of the assessee, the Tribunal allowed the appeal in favour of the assessee. - 2408 of 2009 - - - Dated:- 9-12-2010 - Harsha Devani and H.B. Antani, JJ. REPRESENTED BY : Shri Varun K. Patel, for the Appellant. Shri K.B. Trivedi, Sr. Advocate with Hardik P. Modh, for the Respondent. [Judgment per : Harsha Devani, J. (Oral)]. - Leave to amend the proposed questions by adding the additional question as proposed question (f) . Amendment to be carried out forthwith. 2. In this appeal under Section 35G of the Central Excise Act, 1944 (the Act), the appellant, Commissioner, Central Excise, Customs Service Tax, Daman, has challenged the order dated 11-6-2009 passed by the Customs, Excise Service Tax Appellate Tribunal (the Tribunal), by proposing the following questions : [a] Whether, in the facts and circumstances of the case, the respondent assessee had violated conditions/provisions of para 6.8(f) of EXIM Policy (2002-07) by selling finished products in Domestic Tariff Area (DTA) with ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he controversy involved in the present appeal is in the nature of a classification dispute which relates directly and proximately to the rate of duty applicable to the goods in question. In support of his submission, the learned counsel has placed reliance upon a decision of the Supreme Court in the case of Navin Chemicals Mfg. Trading Co. Ltd. v. Collector of Customs, 1993 (68) E.L.T. 3 (S.C.), for the proposition that a dispute as to the classification of goods and as to whether or not they are covered by an exemption notification, relates directly and proximately to the rate of duty applicable thereto for the purposes of assessment. Reliance is also placed upon a decision of the Andhra Pradesh High Court in the case of Commissioner of Central Excise, Hyderabad-IV v. Shriram Refrigeration Industries, 2009 (240) E.L.T. 201 (A.P.), wherein the court placing reliance upon the decision of the Apex Court in the case of Navin Chemicals Mfg. Trading Co. Ltd. v. Collector of Customs, has dismissed the appeal. Strong reliance was placed upon a decision of the Bombay High Court in the case of Sterlite Optical Technologies Ltd. v. Commissioner of Central Excise, Aurangabad, 2007 (213) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the question as to whether or not the decision on which reliance has been placed by the Tribunal is applicable to the facts of the present case or not, can be gone into by this Court. 7. Strong reliance is placed upon a decision of this High Court in the case of Anil Products Limited v. Commissioner of Central Excise, Ahmedabad-II, 2010 (257) E.L.T. 523 (Gujarat), wherein, in a similar set of facts questions with regard to classification of goods had been raised in the appeal. The Court held that it had jurisdiction to decide the appeal in the light of the fact that it was possible for the Court to decide the matter by dealing with the issue regarding the order of the Tribunal being a non-speaking and non-reasoned order. The Court had held that if it concentrates only on the said question, leaving aside the question of classification of the assessee s product, the tax appeal would be maintainable before this Court. The Court, accordingly, entertained the appeal on a limited aspect, to hold that the Tribunal had not considered all the submissions of the assessee that were made before it. It is submitted that in the light of the said decision of this Court, it is apparent that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods for the purposes of assessment, have relevance not only for the parties there concerned but for other importers as well. 11. It will be seen that sub-section (5) uses the said expression determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment and the Explanation thereto provides a definition of it for the purposes of this sub-section . The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court had the jurisdiction to entertain the appeal. 14. In this regard, a perusal of the impugned order indicates that the Tribunal has in the first paragraph recorded the facts very briefly. The Tribunal has thereafter recorded that both the sides agreed that the issue is no longer res-integra and stood concluded by the decision of the Larger Bench in the case of Juned Bilal Memon, 2008 (221) E.L.T. 45 (Tri.-LB.). The Tribunal has also recorded that the learned advocate had submitted that the Supreme Court had also considered this issue in M/s. Virlon Textile Mills, as reported in 2007 (211) E.L.T. 353 (S.C.) and that, there were several other decisions of the Tribunal subsequent to the decision of the Larger Bench on the same issue in favour of other 100% EOUs. Considering the fact that the issue was no longer res-integra and stood decided in favour of the assessee, the Tribunal allowed the appeal in favour of the assessee. 15. On a plain reading of the impugned order of the Tribunal, it cannot be said that the order is a non-speaking order. When both the sides had agreed that the issue involved in the appeal before the Tribunal stood concluded by the decision of the Large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said question leaving aside the question of classification of the assessee s product. The Court, therefore, held that the appeal was maintainable and accordingly, heard the appeal on the aforesaid question only. 18. The aforesaid decision of this High Court would not be applicable to the facts of the present case inasmuch as, in the facts of the present case, it is not the case of the revenue that any contention raised by it has not been considered and dealt with by the Tribunal. The case of the revenue is that the order of the Tribunal is a non-speaking order. However, as already discussed hereinabove, in the facts and circumstances of the present case it cannot be said that the impugned order of the Tribunal is a non-speaking one. 19. Insofar as the question as to whether the concession made by the counsel on a question of law is binding when such concession was without authority is concerned, as has been rightly submitted on behalf of the assessee, the fact that the concession was made by the learned SDR without authority is required to be brought to the notice of the Tribunal by filing appropriate application and cannot be raised for the first time before this Court by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
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