TMI Blog1998 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances, we feel that this question requires to be considered by the Tribunal. Set aside the orders of the Tribunal and remit the appeals to the Tribunal for deciding the question relating to application of proviso to Section 11A of the Act in the present case. Appeal allowed. - 2817-18 of 1993 - - - Dated:- 12-1-1998 - J.S. Verma, CJI, B.N. Kirpal and V.N. Khare, JJ. [Judgment per : V.N. Khare, J.]. - These two appeals are directed against the order dated 12-8-1992 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the `Tribunal'), whereby the Tribunal allowed the respondent's appeals holding that the tanks and vats manufactured by the assessee would be classified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re exempt from payment of duty as the same fall under sub-heading 3926.90 as "other articles of plastics". The Additional Collector of Central Excise, Bombay held that Heading 39.25 covers not only plastic tanks used in the construction of building, but also in the construction of industrial plants. The explanation of the respondent that the Heading 39.25 should be given the restricted meaning and confined to the reservoir used in construction of building was rejected. On the question of application of extended period of limitation contained in proviso to Section 11A of the Act for the purpose of raising demand, the Additional Collector held that since the respondent had misled the department into believing that these were articles of plast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently, both the appeals were allowed by the impugned order. 5. The foremost question that arises for consideration in these appeals is, as to whether the goods manufactured by the respondent fall under sub-heading 3925.10 of the Tariff or they fall under sub-heading 3926.90, as "other articles of plastics" and were exempt from duty. 6. Before we answer the question, it is necessary to reproduce the relevant heading, sub-heading and description of the goods occurring in classification list contained in Chapter 39 of the Act. Heading 39.25 Heading No. Sub-heading No. Description of goods Rate of duty 39.25 Builders' ware of plastics, not elsewhere specified or included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ywhere and as such, a controversy arose before the Tribunal whether the tanks and vats manufactured by the respondent would fall under Heading 39.25, as "builders ware of plastics, not elsewhere specified or included" or, under sub-heading 3926.90 as "other articles of plastics". Under such circumstances, it would have been more appropriate for the Tribunal to have applied Rules of Interpretation of the Excise Tariff, Rule 4 whereof provides that the goods which cannot be classified in accordance with Rules 1, 2 and 3 of the Rules, they shall be classified under heading appropriate to the goods to which they are most akin. 8. Apparently, Rules 1, 2 and 3 are not applicable for resolving the dispute and, as such, what was required to be do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re classifiable as "builders ware of plastics" and the view taken by the Tribunal that the classification of goods, i.e., tanks and vats would be appropriate under sub-heading 3926.90 of the classification list, and are exempt from excise duty, is erroneous. 9. It was then contended on behalf of the respondent that these appeals deserved to be remanded to the Tribunal for deciding the question as regards the application of extended period of limitation. It is true that since both the appeals of the respondent were allowed by the Tribunal on the ground that the goods manufactured by the respondent are classifiable under sub-heading 3926.90, there was no occasion for the Tribunal to deal with the question of extended period of limitation. U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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