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TMI Blog2011 (7) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification Lists with effect from 1.3.94 till 1.4.95 classifying the above products in the aforesaid manner. With effect from 12.5.95 till 28.2.2000, they filed Classification Declarations classifying the said products, more or less, in the same manner. The department issued 22 show-cause notices covering the entire period of dispute proposing to classify all the goods under SH 4811.30 and raising consequential demands of differential duty. These show-cause notices further proposed to impose penalties on the assessee under Rule 173Q of the Central Excise Rules, 1944 on various grounds. One of the show-cause notices, was issued on 2.5.94 by the Collector of Central Excise covering the period 1.4.89 to 31.7.93 and invoking the extended period of limitation on the ground of alleged suppression of facts.The remaining show-cause notices were issued within the normal period of limitation by the jurisdictional Superintendent of Central Excise and these were answerable to the Assistant Collector/Assistant Commissioner of Central Excise. The assessee claims to have replied to all the show-cause notices contesting the revision of classification, demand of duty and penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yoff Packaging Pvt Ltd vs Union of India 2002 (142) ELT 31 (Bom). Still aggrieved, the assessee approached the Hon'ble Supreme Court in Civil Appeal No. 4347/2002 which was disposed of by the apex court with a direction to the appellant/assessee to pre-deposit a sum of Rs 4,82,280.11 with the first appellate authority under Section 35F of the Central Excise Act, the said amount being the amount of duty demanded in the Collector's show-cause notice for the period April - 89 to July - 93. The apex court, in its order, vide Plyoff Packaging Pvt Ltd vs Union of India 2002 (144) ELT 497 (SC) noted, inter alia, that though the case under consideration of the Additional Commissioner was in respect of show-cause notice dated 2.5.94 he, in the final order, proceeded to confirm the demand which was the subject matter of the 22 show-cause notices. Pursuant to the apex court's order, the Commissioner (Appeals), having found compliance with Section 35F of the Act by the appellant (assessee), took up their appeals and disposed of them on merits vide Order-in-Appeal No. PD/116/Th-II/2003 dated 30.9.2003 (impugned order). 4. The learned Commissioner (Appeals) was, apparently, not incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Tariff, Explanatory Notes to HSN, Exemption Notifications etc. A separate compilation of the 22 show-cause notices and replies thereto has also been filed. The documents compiled by the learned counsel include copies of declarations filed under Rule 174 of the Central Excise Rules, 1944, Classification Lists/Declarations filed under Rule 173B, test reports of the Chemical Examiner of the department etc. It is submitted that samples of the products were drawn in 1993, 1994 and 1998 but no copy of any test report on the samples drawn in 1994 was supplied. It is submitted that the available test reports are in favour of the assessee. In this context, it is further pointed out that only the test report on the 1993 sample was considered by the authorities below. Other test reports were not considered. 8. The learned counsel further points out that the assessee claimed the benefit of Notification No. 49/87-CE dated 1.3.87 (as amended) for the period from March - 89 to February - 94 in respect of two of the three products which, if classified under SH 4811.90, could attract nil rate of duty. Similarly, for the period from 1.3.94 to 15.3.95 and for the period f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Collector's show-cause notice which was issued on 2.5.94.This aspect was also noted by the Hon'ble High Court and the Hon'ble Supreme Court in the cases cited before us.Therefore, it cannot be gainsaid that the adjudicating authority passed the Order-in-Original in gross violation of the principles of natural justice inasmuch as it took up the aforesaid 21 show-cause notices also for adjudication behind the back of the party. When this grievance was raised before the learned Commissioner (Appeals), it did not receive proper attention. The learned Commissioner (Appeals) was not in a position to order remand of the case either. The appellate authority was apparently constrained to take up adjudication of the 21 show-cause notices also after giving the assessee an opportunity of being heard. However, the order passed by the learned Commissioner (Appeals) is also not sustainable on merits inasmuch as many of the submissions made by the assessee were either ignored or not properly appreciated. The main contention raised before the appellate authority by the assessee was that their Classification Lists were not disposed of before adjudication of the demand notices. It appears, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excluded from the purview of the demand of duty. Needless to say that this part of the decision of the learned Commissioner (Appeals) shall stand. In other words, it would be beyond the scope of de novo adjudication to demand any duty from the assessee in respect of Anti-corrosion Paper. In respect of the other products, the original authority shall take fresh decision on all the relevant issues for the relevant period in accordance with law after giving the assessee a reasonable opportunity of being heard against the show-cause notices. In case any of the show-cause notices remains unanswered, the rule of natural justice demands that the assessee be given an opportunity to reply to such notice also. 13. In the result, we set aside the impugned order save the Appellate Commissioner's finding relating to Anti-corrosion Paper, and allow the assessee's appeal by way of remand with a direction to the original authority to undertake de novo adjudication of all the 22 show-cause notices in the aforesaid manner. It is made clear that all issues except dutiability of Anti-corrosion Paper are left open for fresh decision by the adjudicating authority. 14. The Revenue's appeal also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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