TaxTMI 
TaxTMI 
2010 (9) TMI 944
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...., Central Excise, Division Olpad. 2.1 The facts of the case in brief are that the appellant is engaged in the manufacture of Polyester Staple Fibre (PSF) from PET crap and PET waste bottles. Hon'ble Tribunal in case of CCE, Kanpur v. G.P.L. Polyfilms Ltd. as reported in 2005 (183) E.L.T. 27 (Tri-Del.) held that the Polyester Staple Fibre (PSF) manufactured from PET scrap and PET waste bottles, is not dutiable. Accordingly, the appellant surrendered the Central Excise Registration. Thereafter, C.B.E. & C. issued Circular 929/19/2010-CX., dated 29-6-2010 under Section 37B of the Central Excise Act, 1944 clarifying that the Polyester Staple Fibre (PSF) manufactured from PET scrap and PET waste bottles is classifiable under Heading 5503 20 0....
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....ot been challenged by the Department and hence the said decision of the Tribunal is final. It has also been contended that against the said Circular dated 29-6-2010 issued by CBEC, they have filed Writ Petition before Hon'ble Delhi High Court which has been admitted by the Hon'ble High Court and hence the matter is sub judice admitted. As the Writ Petition has been admitted by the Hon'ble High Court, they are unable to determine the excisability of the goods as well as rate of duty on the said goods. Therefore, the provisions of Rule 7 of Central Excise Rules, 2002 are applicable to allow provisional assessment. The appellant has contended that non-granting of provisional assessment amounts to contempt of the order dated 13-8-2010 of Hon'bl....
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.... CBEC Manual of Supplementary Instructions. 4.1 I have carefully gone through the impugned O-in-O, Appeal Memorandum and contentions raised at the time of personal hearing. I find that Hon'ble Tribunal in case of CCE, Kanpur v. G.P.L. Polyfilms Ltd. as reported in 2005 (183) E.L.T. 27 (Tri.-Del.) has held that the Polyster Staple Fibre (PSF) manufactured from PET scrap and PET waste bottles is not dutiable. Accordingly, the appellant surrendered the Central Excise Registration. The Department did not file any appeal against the aforesaid order of Hon'ble Tribunal. Therefore, the said order of Hon'ble Tribunal has attained finality. In the cases of Jayaswal Neco Ltd. v. CCE, Nagpur [2006 (195) E.L.T. 142 (S.C.) = 2007 (8) S.T.R. 305 (S.C.....
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..... 469 (S.C.) (xvi) CCE, Patna v. Shakti Tubes Ltd. - 2008 (231) E.L.T. 193 (S.C.) (xvii) CCE, Kanpur v. Kothari Products Ltd. - 2008 (229) E.L.T. 12 (S.C.) = 2009 (16) S.T.R. 657 (S.C.). 4.2 In view of the aforesaid judgments, I am of the strong opinion that the appellant is eligible for at least the facility of provisional assessment. I also find that after the decision of Hon'ble Tribunal, the Jurisdictional Central Excise Authorities did not object to surrender of Central Excise Registration by the appellant and also did not raise any demand for non-payment of duty. It is thus evident that the Jurisdictional Central Excise Officers accepted said decision of Hon'ble Tribunal and the appellant was availing benefit of the said deci....
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....gree with the learned Advocate that they are disputing the dutiability of the said goods and hence the provisions of Rule 7 of Central Excise Rules, 2002 are applicable for allowing the provisional assessments. The Assistant Commissioner in view of the admission of the Writ Petition by Hon'ble Delhi High Court and the aforesaid order on the Stay Application, should have allowed the provisional assessment under Rule 7 Central Excise Rules, 2002. I, considering the order dated 13th August, 2010 of the Hon'ble High Court direct the Assistant Commissioner to allow provisional assessment of the goods till disposal of the Writ Petition by Hon'ble Delhi High Court. 4.5 The contention of the appellant that the Circular issued by the Department a....