2008 (9) TMI 674

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....als) had classified the subject goods under SH 8479.19 in favour of the assessee. The appellate authority rejected the Revenue's proposal for classification of the item under SH 8409.00. The relevant show-cause notices had proposed to classify the goods under SH 8409.00 as parts suitable for use solely or principally with the engines of Heading 84.07. In their reply to the show-cause notices, the assessee claimed classification under SH 8503.00 in respect of those goods which were cleared to be used as parts of generators (Heading 85.01) and under SH 8714.00 in respect of those goods which were cleared to be used as parts of motorcycles (Heading 87.11). The adjudicating authority rejected these claims and confirmed the Revenue's proposal fo....

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....f. The appellants shall be given fair opportunity of hearing. The appellants can produce any additional evidence to support their claim before the original authority and the said authority shall consider all the technical evidence that may be produced by the appellants to support their case. The appeals are thus allowed by way of remand." Pursuant to the above remand of the case, the original authority passed fresh orders, wherein the authority reaffirmed classification of the goods under SH 8409.00 as claimed by the Revenue. Against this decision, the assessee preferred appeals to the Commissioner (Appeals). This time, they claimed classification of the goods under a different entry of the Tariff viz. Heading 84.79 (SH 8479.19). This cl....

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....e Tribunal under Section 35C of the Central Excise Act. It is submitted by the learned counsel that there is no estoppel against law and, therefore, it cannot be said that the lower appellate authority erred in considering the claim of the assessee for classification of the goods under an entry beneficial to them. In this connection, reliance is placed on the following decisions of the Tribunal :- (i)      Crompton Greaves Ltd. v. C.C.E., Aurangabad [1996 (87) E.L.T. 414 (Tribunal)]. (ii)    Shalimar Paints Ltd. v. Commissioner of Central Excise, Calcutta [2001 (134) E.L.T. 285 (Tri.-Kolkata)]. It is pointed out that, in the above cases, new claims for classification of goods were entertained....

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.... order is specific. The case before the Tribunal was remanded to the original authority. The case before the Tribunal was essentially of classification dispute viz. Heading 84.09 vs. Heading 87.14/85.03. It was this case which was remanded and, therefore, it cannot be said that the remand was open enough to enable the assessee to claim anything they wanted. In this context, it will be useful to refer to the text of Section 35C(1) of the Central Excise Act, which reads thus :- "(1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authori....