TMI Blog2002 (7) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... concerning the issue of proper classification of a certain fabric manufactured by the 1st Petitioner for the purposes of levying the excise duty under the Central Excise Tariff Act, 1985 and the consequent levy of duty under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. Amongst the fabric manufactured by the 1st Petitioner, there are fabrics known as Rayon Woven Fabrics. It is the case of the Petitioners that these fabrics are separate and distinct from 'Tyre Cord Fabric' of Viscose Rayon. According to the Petitioners, these fabrics are made of man-made filament rayon which are woven and which are not subjected to any process. It is their case that they fall under Heading 5408 of the Schedule to the Central Excise Tariff Act and are not liable for any additional excise duty. As against that, the stand of the Department was that they fall under the category 'Tyre Cord Fabric' of Viscose Rayon and they fall under Heading 5902.30. 4.After the Petitioners filed their classification list with respect to the concerned product, the Respondent No. 2 Assistant Collector of Central Excise, held that the goods manufactured by them correctly fall under Tariff Headi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om time to time on 9th January, 2002, 16th January, 2002, 27th February, 2002, 4th April, 2002, 19th April, 2002 and 12th June, 2002. Affidavits were filed by the Respondents to explain as to what steps they had taken in this behalf. One Mr. A.C. Buck, Commissioner of Central Excise filed affidavits on 26th February, 2002, 17th April, 2002, 18th April, 2002 and lastly he filed an affidavit on 10th July, 2002 and placed on record the correspondence with the authorities in Delhi. Now when we saw the second order, it was noted that it was attested by one Mr. Bhalchandra Shantaram Ambeskar, then Superintendent of Central Excise. The signature of the Appellate Authority was as follows :- 'Sd/- (P.P. Mittal) - Collector of Excise (Appeals) Bombay'. After an inquiry, the Respondents placed on record the affidavit of Mr. Mittal and Mr. Ambeskar. As far as Mr. Mittal is concerned, it is to be noted that in spite of having been informed, he did not remain present in this court and the matter was adjourned for his convenience. Ultimately the above affidavit was tendered which is affirmed in Delhi. Mr. Mittal stated in his affidavit that having seen the photocopy of the order dated 24th Novemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notings, it is very clear that such an order dated 24th November, 1988 had been passed by Mr. Mittal. In fact, what is interesting to note is that after knowing the fact that such an order was passed, it was recommended by the then Superintendent (Tribunal) and the Assistant Collector (Tribunal) in January, 1989 that as the order-in-appeal is a de novo, the same may be accepted. Thereafter there is a further noting of 28th September, 1989 that if agreed, the Assistant Collector may be informed to keep the matter pending till the decision of CEGAT. Under this noting, there is a further noting which is as follows :- "We may bring this matter to the notice of the Collector (Appeals) and inform the Asstt. Collector to decide the matter on hearing CEGAT decision." This is signed by the then Superintendent (Tribunal) on 3rd October 1989, the Assistant Collector (Tribunal) one Mr. Inder Singh on 3rd October, 1989 and the Additional Collector one Mr. Khadtare on 4th October, 1989 approving the draft. In the affidavits filed by the Respondents from time to time, it is stated that the concerned officers Mr. Mittal as well as the Superintendent Mr. Ambeskar have since retired, and now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd since the officers concerned have retired, nothing need be done. We do not approve of this approach on the part of the Respondents. Inasmuch as these two officers, viz. Mr. Inder Singh and Mr. Khadtare, are senior officers, it is necessary that the Central Board of Excise and Customs must examine as to whether there was any dereliction of duty on their part at the relevant time and if so what action be taken. The Board must also examine as to whether any action can be taken against Mr. P.P. Mittal or he is entitled to the benefit of Rule 9(2)(b)(ii). In the event the Board comes to the conclusion that he is entitled to the benefit of the rule, the Board will examine as to whether to plug such loopholes any amendment of the rule is desirable and if so whether it should move the Central Government for necessary amendment. It is for the Board to take its own decision and if so convinced, take appropriate action in accordance with the principles of natural justice. We have only recorded what has transpired in this court and on the basis of the material, which is brought to our notice. Our observations are only prima facie observations. This is only to bring the state of affairs to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the first order-in-appeal passed by Mr. Mittal, the Petitioners had moved CEGAT and CEGAT has dismissed their appeal. As against that, in the notings which are now annexed to the affidavit of Mr. Buck affirmed on 23rd July, 2002, it is recorded by the then Assistant Collector (Tribunal) on 13th January, 1989 as follows :- "As the order-in-appeal is de novo, we may accept the same." Mr. Parikh, learned Counsel for the Petitioners, therefore, submits that although the first order-in-appeal is confirmed by the CEGAT, it was in fact given up by the Respondents themselves way back in the year 1989 and therefore, the first order-in-appeal does not survive at all. He also points out that a Misc. Application had been filed by the Petitioners on 21st June, 1996 after coming to know about the second order-in-appeal passed by Mr. Mittal and praying that in view thereof, appropriate order be passed. It is in spite of this fact being on record that the CEGAT has passed the order on 23rd September, 1996 confirming the earlier order-in-appeal and without referring to the second order passed by Mr. Mittal in appeal. It is apparent that such a second order-in-appeal would not have been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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