TMI Blog2004 (7) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) for non-compliance with the requirements of Section 35F of the Act, the impugned judgments are unsustainable and are set aside. We remit the matter back to the CEGAT for adjudication afresh in accordance with law. - 4502-4503 of 1998 - - - Dated:- 21-7-2004 - S.N. Variava and Arijit Pasayat, JJ. [Judgment per : Arijit Pasayat, J.]. - These appeals are directed against the common judgment of the Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Branch, Calcutta (in short the 'CEGAT') which is being assailed by the Central Excise authorities. By the impugned judgment, CEGAT held that tobacco powder obtained by crushing of tobacco leaves, stems, stalks and butts are classifiable under tariff sub-heading 2401.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were confirmed. 4.Appeals were preferred before the Collector of Central Excise (Appeals), Calcutta along with an application for stay. The stay application was rejected by the Collector (Appeals) holding that no case for stay of realization of duty demanded was made out. Since the stay order was not complied with by depositing the amount of duty demanded, the appeals were dismissed for non-compliance of Section 35F of the Act. Similar was the position in respect of demands raised against both the respondents. 5.The respondents preferred appeals before the CEGAT. As noted above, the CEGAT was of the view that the issue involved related to the tariff sub-heading applicable to the product. 6.The respondents who were appellants before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent commercial commodity and an article having distinct name and character, this factual finding could not have been disturbed by the CEGAT without any material to the contrary. The decisions in the two cases relied upon by the CEGAT were based on different factual premises. 9.In response, learned Counsel for the respondents submitted that the factual position was identical and, therefore, the CEGAT was justified in placing reliance on the two decisions referred to above and to hold that tobacco powder was not a different product from tobacco leaves. 10.It is undisputed that the First appeals filed by the present respondents were dismissed on the ground of non-compliance with the requirements of Section 35F of the Act. The CEGAT sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge." 12.In Home Office v. Dorset Yacht Co. [1970 (2) All ER 294] Lord Reid said, "Lord Atkin's speech……… is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board [1972 (2) WLR 537] Lord M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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