TMI Blog2016 (9) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... s by writing letters to the department. Once department has chosen to demand duty in show cause notice dt. 01.03.2004, then respondent had every right to contest that differential duty demand as not payable due to incorrect classification even if duty was paid with interest. We do not find anything wrong in OIA dt. 26.09.2007 of the First Appellate Authority to hold the classification of parts cleared by the respondent under CETH 8708 by relying upon the decision of Tribunal in the case of Tata Motors Limited Vs. CCE, Jamshedpur [2007 (8) TMI 209 - CESTAT, KOLKATA] passed by this bench. It is further observed that ground (iv), taken in the grounds of appeal by the Revenue, is not valid now as order rejecting Revenue s ROM has been finall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate for the Respondent ORDER Per Shri H. K. Thakur 1. This appeal has been filed by the Revenue against Order-In-Appeal No.26/JSR/2007 dt. 26.09.2007 passed by the CCE ST (Appeals), Ranchi as First Appellate Authority. Under this OIA dt. 26.09.2007 First Appellate Authority has set aside the OIO dt. 28.12.2006 passed by the Adjudicating Authority under OIO No.17/Add.Comm/2006 dt. 28.12.2006 Adjudicating Authority confirmed a demand of ₹ 34,80,000/- under Section 11A of the Central Excise Act 1944, alongwith interest, and also appropriated the duty and interest already paid by the respondent herein. In addition to above equivalent amount of penalty was also paid under Rule 25 of the Central Excise Rules, 2002 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings while favourably deciding the classification of goods manufactured by the respondent. 3. Shri Ravi Raghavan (Advocate) and Shri Tanmoy Chakraborty (Advocate) appeared for hearing on behalf of the respondent. Shri Ravi Raghavan argued that classification of their product manufactured and cleared in CKD/SKD condition from various divisions of the respondent are classifiable under Central Excise Tariff Heading (CETH) 87.08. That by a letter dated 10.09.2003 his client wrote to the jurisdictional commissioner that their product is classifiable under CETH 87.08 and that their competitors like M/s. Ashok Leyland Co. are also classifying the same goods under CETH 87.08. That by another letter dt. 10.10.2003 respondent also sent a letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under CETH 8706. That once classification is challengeable then the same has been correctly challenged before the First Appellate Authority with respect to OIO dt. 28.12.2006 and Commissioner (Appeal) has correctly decided the issue in their favour and no interference is called for in the said order. 4. Heard both sides and perused the case records. There was a dispute about the classification of parts cleared by the respondent whether under CETH 8708 or CETH 8706. For the period 15.09.2005 to 30.11.2005 this issue was decided by the Adjudicating Authority under OIO No.08/Commr./06 dt. 29.08.2006 which was set aside by CESTAT under Final Order No.A-1547/Kol/07 dt. 11.07.07 by holding that impugned goods cleared from different divisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the following case laws to argue that a classification once agreed upon by an assessee can be agitated:- i) Collector of Central Excise, Baroda-vs.-Cotspun Ltd.[1999(113)E.L.T.353(S.C.)]. ii) Commissioner of Central Excise, Bhopal vs.- Perfect Refractories [2005(185)E.L.T.163(Tri.-Del.)] iii) Compton Greaves Ltd. vs.- C.C.E., Aurangabad[1996(87)E.L.T.414(Tribunal)]. iv) Shon Ceramics Pvt. Ltd. vs.-Collector of Central Excise[1991(52)E.L.T.608(Tribunal)]. 5.1. In the case of CCE Baroda -vs.-Cotspun Ltd.(Supra) Apex court has held as follows in paragraph-13:- 13. The levy of excise duty on the basis of an approved classification list is the correct levy, at least until such time as to the correctness of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present show cause notice dt. 01.03.2004 respondent was seeking change in the classification of the impugned goods by writing letters to the department. Once department has chosen to demand duty in show cause notice dt. 01.03.2004, then respondent had every right to contest that differential duty demand as not payable due to incorrect classification even if duty was paid with interest. We do not find anything wrong in OIA dt. 26.09.2007 of the First Appellate Authority to hold the classification of parts cleared by the respondent under CETH 8708 by relying upon Final Order No.A-1547/Kol/2007 dt. 09.08.2007 passed by this bench. 6. It is further observed that ground (iv), taken in the grounds of appeal by the Revenue, is not valid now as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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