TaxTMI 
TaxTMI 
1994 (10) TMI 167
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.... to November, 1992 on the grounds that the goods in question were classifiable under sub-heading 3923.90. The appellants contested the demand on the ground that the clearances during the relevant period having been effected on the basis of an approved Classification List no demand could be raised for the past period until the Classification List was revised and any revision of the Classification List could have only prospective effect. However, by his order dated 25-2-1993 the Assistant Collector confirmed the demand. Being aggrieved by the order passed by the Assistant Collector, the appellants preferred an appeal before the Collector (Appeals) who confirmed the order passed by the Assistant Collector on the grounds that Boards instruction dated 24-9-1992 stating that HDPE/PP Woven Sacks were classifiable under sub-heading 3923.90 having been issued under Section 37B was binding on the Assistant Collector and on this account demand for a period not exceeding six months from the date of the said instruction was sustainable. 2. On behalf of the appellants, Shri A.S. Sundar Rajan, the Ld. Consultant appeared before us. He contended that the Assistant Collector's order confirm....
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....oved Classification List. He contended that under these circumstances the confirmation of the demand with retrospective effect was illegal. Continuing his submissions Shri Sunder Rajan stated that in case it is held that the classification could be revised by the Department with retrospective effect from the date of the Show Cause Notice the appellants would be entitled to the MODVAT benefit. 3. On behalf of the respondents, Shri Sidarath Kak, Ld. Jt. CDR stated that it is well settled by a number of judgments of the Supreme Court, High Courts and the Tribunal that even if there is an approved Classification List, assessments can be revised upto a period of six months from the date of Show Cause Notice. In support of his contention he cited the following case law :- (i) Nat Steel Equipment Pvt. Ltd. v. Collector of Central Excise - 1988 (34) E.L.T. 8 (S.C.) (ii) Guru Priya Tele Auto Pvt. Ltd. v. Suptd. of Central Excise - 1992 (58) E.L.T. 361 (Kar.) = 1993 (44) ECR 391 (Kar.) Shri Kak further submitted that as held by the Collector (Appeals) Board's Instruction dated 24-9-1992 having been issued under Section 37-B, the demand for recovery of differential ....
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.... Assistant Collector of Central Excise, Bangalore, reported in 1985 (22) E.L.T. 1751 Karnataka High Court has also held that the Classification List approved by the Assistant Collector can be reopened since Section 11A of the Central Excises and Salt Act is not only a recovery provision but enables the original authority to reopen the Classification List and re-assess the goods. Paras 33 and 34 of the said judgment being relevant are reproduced below : "33. As is clear from the Show Cause Notice, the Assistant Collector proposed to withdraw the approval to the Classification list and assess the clearances of the petitioner clubbing it with the clearances of its predecessor. It was also proposed to apply the Notification No. 80/80 to the facts of the case and take the production of the full year 1981-82 from the `factory'. This was clearly a matter falling within the purview of Section 11A of the Act. 34. But, it is contended on behalf of the petitioner that 11-A is only a recovery provision and it does not enable the original authority under the Act to reopen and re-assess. This argument is no longer open to the learned Counsel for the petitioner to press this contention....
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....9-1992 (Order No. 8/92) issued by the Board under Section 37B stating that sacks made out of HDPE/PP Strip and tapes not exceeding 5 mm would henceforth be classified under sub-heading 3923.90 of the Central Excise Tariff the Assistant Collector could have revised the classification only prospectively from the date of the Show Cause Notice issued on 8-12-1992. Since the Show Cause Notice dated 8-12-1992 while proposing to assess the goods in question under sub-heading 3923.90 clearly referred to the Classification List with effect from 1-4-1992, the appellants contention that Show Cause Notice did not seek to review the approved Classification List has also to be rejected. 11. The appellants have contended that the relevant instructions issued by the Board under Section 37B having been communicated to the Public through Trade Notice No. 29 dated 5-11-1992, the demand, if any, could have been raised for the period subsequent to the date of the Trade Notice. In this regard reliance had been placed in the judgment of the Madras High Court in the case of Union of India v. Asia Tobacco Co. Ltd. (supra) wherein it was held that a notification withdrawing an exemption is enforceab....