Operative earlier classification order bars contrary departmental challenge where no stay or setting aside is shown.

An earlier appellate classification order in favour of the assessee remained operative because the record did not show that it had been set aside or stayed. In that situation, a departmental challenge based on a contrary tariff classification could not survive, and the Tribunal declined to examine the rival classifications under Chapters 27 and 38 on merits. The effect was that the impugned demand founded on the contrary classification failed, and the assessee's favourable classification position remained undisturbed.

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Issues: Whether the department's appeal against the classification of the product could be entertained when the earlier appellate order in favour of the assessee had not been shown to have been set aside or stayed.

Analysis: The appeal turned on the effect of an earlier appellate determination classifying the product under sub-heading 3811.00. The record did not show that the department had successfully challenged that order or that it had ceased to operate. In that situation, the foundation of the impugned demand order, which proceeded on a contrary classification, was treated as no longer surviving. The Tribunal therefore declined to enter into the merits of the rival tariff classifications under Chapters 27 and 38.

Conclusion: The department's appeal was not entertained on merits and was dismissed.

Final Conclusion: The operative effect of the decision was that the assessee's favourable earlier classification position remained undisturbed and the departmental challenge failed.

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