TMI Blog2015 (2) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the earlier period has taken up view that when Show Cause Notice has been issued to the appellant for the same period where assessment has been finalized in that case appellant can raise all the issues on merits and relying on the decisions of this Tribunal in the case of Polydyne Corporation, I hold that in this case also when the show cause notice was issued on 29.12.2004 for the said period the appellant was at the liberty to raise all the issues in defence of the show cause notice issued to them. In these circumstances, I hold that order dated 15.01.2004 is nonest and non cooperative. - Matter remanded back - Decided in favour of assessee. - Cross Objection No. E/CO/226/2006, Appeal No. E/2517/2006-EX(SM) - Final Order No.50020/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that when assessment is reopened then the assess is entitled to raise all the objections and the assessment already passed becomes non est. He further submits that in the appellants own case for the earlier period, Ld. Commissioner has observed that as the show cause notice has been issued, therefore, the assessment is reopened and all the issues raised by the appellant are required to be considered. In these circumstances, he submits that impugned order be set aside and matter remanded back to the adjudicating authority for reconsideration of the refund claim on the merits. 3. On the other hand Ld. AR opposes the contention of the Ld. Counsel and submits that the order dated 15.01.2004 has finalized the assessment upto spindle st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s product for the reason that the assessees had not challenged the approval of its classification under TI 68 (up to 28-2-1986) or CET sub-heading 39.10 (from 1-3-1986 onwards). However, we agree with the assessees contention that once the matter has been reopened by the Department and duty demand has been raised it is open to the assessees to challenge the rate of duty. This is the view that has been taken by the Tribunal in the case of Lili Foam Industries (P) Ltd. v. Collector of Central Excise reported in 1990 (46) E.L.T. 462. Para 24 which is relevant to this aspect is reproduced below: We have already held that the value of the top skin, bottom skin, side skin and the shreddings are to be increased. The learned Departmental Represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and the duty actually paid by him earlier. The correct quantum of duty payable by an assessee, in cases where the goods are subjected to ad valorem rate of duty, depends on the value of the goods and also the rate of duty. Therefore, determination of the correct rate of duty for the goods on which differential duty is demanded is the first step before quantifying the demand. We accordingly over-rule the objection raised by the learned Departmental representative that the appellant should not be permitted to raise the dispute regarding the determination of rate of duty. The decision in the Lili Foam case has been followed in Decora Ceramics v. Collector reported in 1998 (100) E.L.T. 297. In the light of the above case law, we hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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