TMI Blog2013 (1) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in the classification of the goods under Heading 54.02 and chose to stick to the plea of limitation all throughout in order to get the quantum of demand reduced to the extent possible. In such circumstances, the submission of the assessee that the classification of the goods under Heading 56.06 as held in Order-in-Original No. 55/93 dated 30.11.93 attained finality with the passage of Order-in-Appeal No. 73/2003 dated 30.7.2001 cannot be accepted, and their plea that they were not liable to pay any amount of duty in terms of Heading 54.02 and hence entitled to refund of the duty already paid is also unacceptable. Four questions of law arising out of Final Order Nos. 281 & 282/2000 dated 23.2.2000 have been referred by this Tribunal to the Hon'ble High Court for its opinion and this reference under Section 35H(4) of the Central Excise Act is pending before the Hon ble High Court vide RCP Nos. 27 & 28/2001. In this scenario, it has to be held that the Tribunal's Final Order Nos. 281 & 282/2000 dated 23.2.2000 has not attained finality and that the reference proceedings are to be considered as proceedings in continuation of the Tribunal s proceedings. Therefore, the refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 56.06 with effect from 1.3.1994. In the wake of this development, the jurisdictional Superintendent of Central Excise issued to the respondent three letters dated 30.11.1994, 5.12.1994 and 30.3.1995. The first letter dated 30.11.1994 requested the assessee to file revised classification list in view of the order dated 9.11.94 of the Collector (Appeals). The second letter dated 5.12.1994 required the assessee to pay appropriate duty on their future clearances of goods. The third letter dated 30.3.1995 quantified the differential duty for the period from 1.3.1994 and called for its payment. Upon receipt of the first two letters, the respondent filed Writ Petition No. 21140/1994 in the High Court and obtained stay on 22.12.1994 for a period of six weeks. The stay was vacated by the Hon ble High Court on 14.2.1995. The Writ Petition was dismissed later. The Writ Appeal filed by the party also came to be dismissed. The respondent started paying appropriate duty from mid-February 1995. 3. The Central Excise Superintendent issued a formal show-cause notice dated 14.6.95 to the respondent demanding differential duty for the period 1.3.94 to 14.2.95 in terms of the appellate Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d refer the said questions of law for the Court s opinion. Accordingly, the following questions of law have been referred to the High Court:- 1. Whether in the facts and circumstances of the case, the Tribunal is right in law in holding that no duty can be demanded by the department either prior to issue of show-cause notice or from the date of issue of Superintendent letter dated 30.3.1995? 2. Whether in the facts and circumstances of the case, the CEGAT is correct in deciding the issue against the Department by relying on the decision of the Supreme Court in the case of Cotspun Ltd. reported in 1999 (113) ELT 353 (SC) which is apparently not applicable to the present case inasmuch as the fact that the subject matter in this case is about the legality of demanding differential duty for the past period as per the classification already got revised under the Order-in-Appeal No. 80/94. 3. Whether in the facts and circumstances of the case the CEGAT is correct in rejecting the Departments contention that the revised classification as decided by the Appellate Authority is valid for the whole period that was covered in the Order-in-Original dated 30.11.1993 and the assessees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples of natural justice. I find force in the argument of the appellate that no stay order has been obtained against the order of the CEGAT based on which the claim was filed. Therefore, the appellants are entitled for refund of pre-deposit as per Board s instructions cited by the appellants. Further, the lower authority has passed the impugned order without giving any opportunity to the appellants to explain their views. The Finance Act, 2000 has revalidated the action under Section 11A but this cannot automatically warrant recovery of demands in cases where proceedings were adjudicated by the Appellate forums based on the judgment of the Supreme Court in the case of M/s. Cotspun and this has been clarified by the Board vide Circular No. 588/25/2001CX dated 19.9.2001. Therefore, the impugned order is set aside. The present appeal of the Revenue is directed against the above order of the appellate Commissioner. 8. We have also come across a letter dated 5.11.2011 submitted to the Superintendent of Central Excise of the Range concerned by the respondent, which inter alia indicates that they took CENVAT credit of the amount of Rs.1,30,28,051/- (which was claimed as refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 14.6.1995 was not accepted by the Department and that the reference applications filed by the Department in relation to that Final Order are pending before the Hon ble High Court. The questions of law arising out of the said Final Order are awaiting the Hon ble High Court s decision. In the circumstances, according to the learned Joint Commissioner (AR), Final Order No. 281 282/2000 ibid cannot be said to have attained finality. 12. The submissions of the authorized representative of the respondent-company are to the effect that Order-in-Original No.55/93 classifying the goods under Heading 56.06 continues to hold the field due the dismissal of the assessee s appeal filed against it vide Order-in-Appeal No. 73/2001 dated 30.7.2001 passed by the Commissioner (Appeals), that this Order-in-Appeal was not challenged by the Department and hence it is not open to them to revise the classification of the goods to Heading 54.02 as proposed in show-cause notice dated 14.6.95, that the proposal contained in the said show-cause notice which was issued on the basis of Order-in-Appeal No. 80/94 dated 9.11.1994 is unfounded inasmuch as this Order-in-Appeal was set aside by this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the provisions of this Act or of the rules made thereunder with an intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect as if, for the words one year , the words five years were substituted: Explanation: Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be Section 110 of the Finance Act, 2000, validating actions already taken under Section 11A of the Central Excise Act, provided as under:- 110(1). Any notice issued or served on any person under the provisions of Section 11A of the Central Excise Act during the period commencing on and from the 17th day of November, 1980 and ending on the date on which the Finance Act, 2000 receives the assent of the President (hereinafter referred to as said period) demanding duty on account of non-payment, short payment, non-levy, short-levy or erroneous refund within a period of six months or five years, as the case may be, from the relevant date as defined in Clause (ii) of sub-section (3) of that section shall be deemed to be and to alw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Act, the above show-cause notice proposing to revise the classification of the goods and demand duty from the assessee on that basis has to be deemed to have been issued validly and effectively for all purposes notwithstanding any approval of classification list, acceptance of price list or finalization of provisional assessment. In view of the non obstante clause [notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority] of sub-section (2) of Section 110 of the Finance Act, 2000, the action initiated by the Department by issuance of show-cause notice dated 14.6.1995 was not affected by anything contained in Order-in-Original No. 55/93 dated 30.11.1993. The fact that Order-in-Appeal No. 80/94 dated 9.11.94 classifying the goods under Heading 54.02 was set aside by this Tribunal vide Final Order No. 553/2001 dated 19.4.2001 or that the assessee s appeal against Order-in-Original No. 55/93 dated 30.11.93 was dismissed by the Commissioner (Appeals) vide Order-in-Appeal No. 73/2001 dated 30.7.2001 does not ipso facto alter this position. In the result, show-cause notice dated 14.6.95 and all proceedings in relation thereto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in order to get the quantum of demand reduced to the extent possible. In such circumstances, the submission of the authorized representative of the assessee that the classification of the goods under Heading 56.06 as held in Order-in-Original No. 55/93 dated 30.11.93 attained finality with the passage of Order-in-Appeal No. 73/2003 dated 30.7.2001 cannot be accepted, and their plea that they were not liable to pay any amount of duty in terms of Heading 54.02 and hence entitled to refund of the duty already paid is also unacceptable. (c) Four questions of law arising out of Final Order Nos. 281 282/2000 dated 23.2.2000 have been referred by this Tribunal to the Hon ble High Court for its opinion and this reference under Section 35H(4) of the Central Excise Act is pending before the Hon ble High Court vide RCP Nos. 27 28/2001. If the reference is answered in favour of the Department (who filed the RCPs), this Tribunal will be required to dispose of the appeals (E/488/96 filed by the assessee and E/837/96 filed by the Department) afresh in terms of the judgment of the Hon ble High Court vide sub-section (1) of Section 35K of the Central Excise Act which provides that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) cannot be sustained. (f) The learned Commissioner (Appeals) took the view that the Finance Act, 2000 which revalidated past actions taken under Section 11A of the Central Excise Act did not warrant recovery of duty in cases where appellate fora set aside demands in view of the Hon ble Supreme Court s judgment in Cotspun case. Obviously, this view was taken by the lower appellate authority regardless of the fact that the Tribunal s Final Order dated 23.2.2000 had not attained finality and also the fact that the judgment in Cotspun case had been rendered prior to the enactment of the Finance Act, 2000. The learned Commissioner (Appeals) ought to have examined the effect of Section 110 of the Finance Act, 2000 on the facts of the respondent s case. 14. In the result, the impugned order is set aside and this appeal is allowed. (P.G. Chacko) Per Mathew John 15. While agreeing with the detailed order as recorded by my Ld Brother, I consider it may be proper to add a few paragraphs to put my logic in slightly different words. 16. This appeal before Tribunal challenges Order-in-Appeal No. 197/2003 dated 28-11-2003 issued by Commissioner (Appeal) holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the appellant that the classification is settled in heading 56.06 is erroneous. 18. Thus the situation is that the classification decided by order No. 45/96 (MDU) dt. 26-02-1996 is not disturbed. Pleadings of the appellant for changing classification did not weigh with the Hon ble Madras High Court in W.P. Nos. 32159/94 and 21140/94 decided on 14-02-95 [1996 (82) ELT 449]. Further the time bar issue decided by the Tribunal by order dated 23-02-2000 has been reversed due to the retrospective amendment by Finance Act, 2000. So the Commissioner (Appeal) was wrong in holding that the appellant was eligible for the impugned refund. 19. The finding of the Commissioner (Appeal) that instructions issued by Board vide Circular No. 572/9/2001-CX dated 22-02-01 and M. F. DR. F. No. 275/37/2000-Cx-8A dated 02-01-2002 will apply in the facts of the case is not correct because those instructions are not with reference to a situation where there is a specific Act of the Parliament validating a demand notwithstanding any decision of any Court or Tribunal. 20. The finding of the Commissioner (Appeal) that instructions in Board s Circular 588/25/2001Cx dated 19-09-2001 will apply to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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