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2016 (9) TMI 1132 - CESTAT KOLKATA

2016 (9) TMI 1132 - CESTAT KOLKATA - TMI - Classification - motor vehicle chassis manufactured and cleared in CKD/SKD condition from various divisions of the respondent - whether to be classified under CETH 8708 as per appellant or CETH 8706 as per Revenue - Held that:- a correct classification of appellant's goods for the period 15.09.2005 to 30.11.2005 will be the correct classification for the period prior to 15.09.2005 or after 30.11.2005 so long as there is no change in the relevant CET hea .....

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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 finally upheld by Apex Court by dismissing Revenue s appeal. The apprehension of the Revenue in ground (vi) of th .....

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o include deciding the valuation of goods and the rate of duty applicable. It will also include demands/refunds under Section 11A and Section 11B of the Central Excise Act, 1944 arising as a result of scrutiny and finalization of provisional assessments. The issue of deciding the classification of the respondent s products does not mean that all the procedural requirements of assessment/re-assessment/self assessments have been changed. The provisions of Section 11B of the Central Excise Act, 194 .....

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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. I .....

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not decided by the Adjudicating Authority under OIO dated 28.12.2006. That duty on 348 number of chassis in SKD/CKD condition were cleared by appellant after February, 2003 whereas duty was paid at 16% advalorem. That as per Finance Bill 2003 duty on chassis cleared under CETH 8706 was enhanced from 16% to 16%+Rs.10,000/- per chassis with effect from 01.03.2003. That the entire differential duty of ₹ 34,80,000/-+Rs.60,800/- interest was paid by the Respondent on 19.04.2003 before the issu .....

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the subject matter of the proceedings then First Appellate Authority has gone beyond the scope of adjudication proceedings 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 u .....

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ed duty of ₹ 1,43,61,600/- on the same issue that CKD/SKD units are classifiable under CETH 8706. That by an OIO No.08/Commr/06 dt. 29.08.2006 Adjudicating Authority confirmed demand of ₹ 1,43,61,600/-. That on appeal by Final Order No.A-1547/Kol/07 dt.09.08.2007 this bench held that the goods manufactured from various divisions of the respondent are classifiable under CETH 87.08 and not under CETH 87.06 as claimed by the department. That Revenue filed a ROM with respect to the said .....

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been filed by the Revenue against OIA dated 28.12.2006 based on CESTAT Order No.A-1547/Kol/2006 dt. 09.08.2007. That once departmental adjudication also confirmed duty liability of ₹ 34,80,000/- under OIO dt. 28.12.2006 then respondent had every right to agitate the issue that duty at enhanced rate was not applicable as their goods were not classifiable under CETH 8706. That once classification is challengeable then the same has been correctly challenged before the First Appellate Authori .....

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er Final Order No.A-1547/Kol/07 dt. 11.07.07 by holding that impugned goods cleared from different divisions of the respondent have to be assessed on merit in each case and not together as motor vehicle chassis in CKD/SKD condition. The order passed by this bench has reached finality. It is the case of the Revenue that Order No.A-1547/Kol/2007 dt. 09.08.2007 of this bench was only for the period 15.09.2005 to 30.11.2005 and has been wrongly applied by First Appellate Authority while allowing res .....

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8 and 2.9 of Final Order No.A-1547/Kol/07 dt. 09.08.2007 passed by this bench that appellant was corresponding with the department and contesting the classification of the impugned goods even before issue of show cause notice dt. 01.03.2004. The issue of classification of parts from various divisions of the respondent and applicable rate of duty was agitated by respondent before the adjudicating authority also but it was held, interalia, in OIO dt. 28.12.2006 that classification issue cannot be .....

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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 the approval is questioned by the issuance to the assessee of a show cause notice. It is only when the correctness of the approval is challenged that an approved classification .....

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cise, Act, 1944 to seek change in classification once approved by the department or accepted by an assessee. The issue of classification of the parts manufactured/cleared by the respondent for the period 15.09.2005 to 30.11.2005 in show cause notice dated 31.01.2006, was alive before the case was adjudicated under OIO dated 28.12.2006 by the Adjudicating Authority. The issue was finally decided in favour of the respondent as a result of Final Order No.A-1547/Kol/07 dt. 09.08.2007 for the period .....

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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), .....

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