2005 (6) TMI 301 - AT - Central Excise

Tribunal rejects appeal citing timely notice & non-retrospective order

The Tribunal dismissed the appeal as it found that the reclassification under Heading 85.43 was proposed before the Board's order under Section 37B, and ... Wide Band Line Amplifier Issues:Classification of goods under Heading 85.29 vs. Heading 85.43 of the Central Excise Tariff Act; Applicability of Trade Notice No. 189/94 dated 20-11-1994; Retrospective application of Trade Notice; Interpretation of Section 37B of the Central Excise Act; Comparison with the decision in the case of UMS Radio Factory Ltd. v. CCE, Coimbatore.Analysis:The appellants, manufacturers of Wide Band Line Amplifier, initially classified the product under Heading 85.29 of the Central Excise Tariff Act. However, the Department issued a show cause notice proposing to classify the goods under Heading 85.43. The adjudicating authority confirmed this reclassification and demanded the duty shortfall from the appellants. On appeal, the Commissioner (Appeals) upheld the classification under Heading 85.43, stating that the Trade Notice could be applied retrospectively.The appellant's representative argued that the Board's clarification through Trade Notice No. 189/94, issued under Section 37B of the Central Excise Act, should only apply from the date of the Board's order and not retrospectively. They cited a previous Tribunal decision in UMS Radio Factory Ltd. v. CCE, Coimbatore, to support their position.The Respondent contended that the show cause notice predates the Board's order under Section 37B, and the Asstt. Commissioner's confirmation of the reclassification was based on this notice. They argued that the Trade Notice cannot have retrospective effect in this case, distinguishing it from the situation in UMS Radio Factory Ltd. v. CCE, Coimbatore.After considering both arguments, the Tribunal found that the show cause notice proposing the reclassification under Heading 85.43 was issued before the Board's order under Section 37B. As the Asstt. Commissioner's decision was based on this notice and later confirmed by the Board, the Tribunal concluded that the Board's order was not applied retrospectively. Therefore, the Tribunal held that the decision in UMS Radio Factory Ltd. v. CCE, Coimbatore, was not applicable in the present case. Consequently, the appeal was dismissed for lack of merit.In summary, the Tribunal's judgment focused on the timing of the show cause notice, the application of the Trade Notice No. 189/94, the interpretation of Section 37B of the Central Excise Act, and the distinction from a previous case law precedent. The decision clarified that the Board's order did not have a retrospective effect in this scenario, leading to the rejection of the appeal.