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TMI Blog2011 (7) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of Polyester Staple Fibre (PSF) from PET scrap and PET waste bottles. The Tribunal in the case of CCE Kanpur Vs. G.P.L. Polyfilms Ltd. 2005 (183) ELT 27 (Tri-Del), held that the Polyester Staple Fibre (PSF) manufactured from PET scrap and PET waste bottles, is not dutiable. Accordingly, the assessee surrendered the Central Excise registration. Thereafter, CBEC issued a Circular No.929/19/2010-CX, dt.29.6.10 under Section 37 B of Central Excise Act, 1944 clarifying that the Polyester Staple Fibre (PSF) from PET scrap and PET waste bottles is classifiable under Heading 55032000 of Customs Excise Tariff Act, 1985. After issue of the said circular, the Central Excise officers visited the factory of the assessee on 4.8.10 and seized the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner(Appeals) has referred to the Tribunal s decision in the case of CCE Kanpur Vs. G.P.L. Polyfilms Ltd. 2005 (183) ELT 27 (Tri-Del), laying down that the Polyester Staple Fibre (PSF) from PET scrap and PET waste bottles is not dutiable. He also referred to the fact that the Revenue has accepted the above order and has not filed appeal against the same. As such, the Tribunal s order had attained finality and the department cannot take a different view. 5. As regards Board s circular issued under Section 37B, he observed that the said circular stand challenged by the appellant before Hon'ble High Court of Delhi by way of filing Writ Petition. The said writ petition stand admitted by Hon'ble High Court and the notices ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circular shall be subject to the result of this writ petition. As such, it can be safely concluded that the rate of duty is not final. In such a scenario, the appellate authority was justified in holding that the provisional assessment should be resorted to. In any case, we find that no grievance can be said to be there on the part of the Revenue by resorting to provisional assessment inasmuch as the same would be finalized in accordance with the outcome of writ petition pending before Hon'ble High Court of Delhi. We, accordingly, find no merits in the Revenue s case. The appeal filed by the Revenue is, accordingly, rejected.
9. Stay Petition as also appeal gets disposed.
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