TaxTMI 
TaxTMI 
2014 (11) TMI 701
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....ce and new issues which were never raised in the show cause notice and also not in the Revenue's appeal is within the competence and jurisdiction of the Tribunal? (b) Whether the action of the Appellate Tribunal in sending the case for fresh adjudication by way of an open remand for deciding issues not arising out of the show cause notice and the adjudication order and also not arising out of the review application of the Revenue is legal and valid in the facts of this case? (c) Whether the action of the Appellate Tribunal in allowing the Revenue to raise new grounds, new pleas and a totally new case in an application filed under Section 35E(1) of the Central Excise Act, 1944 is legally correct? 2. Counsel for the revenue raised a preliminary objection with respect to maintainability of this appeal on the ground that the decision of the Tribunal under challenge is related to the question of classification of goods. In that view of the matter, in view of the provisions contained in Section 35L of the Central Excise Act, 1944 ('the Act' for short) appeal would be maintainable only before the Supreme Court. 3. To ex....
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....not in the process of modified starch. The above fact supports the view that flash dryers are used in drying of starch and not in the manufacture of modified starch. In view of this authentic literature, allegation based on para 7 referred in 31.1 above does not survive. The manufacturing process of the assessee is exactly similar to the one described in Ullman's Encyclopedia referred above." 3.4 The Commissioner further observed that on the basis of technical literature, the modified starch came to be produced by heat transformation but in such process, there has to be sustained heat for a longer period. In case of the present appellant finding that such process was missing, the Commissioner concluded that : "36. in view of the foregoing, I hold that the Maize Starch Powder manufactured by the assessee is properly classifiable under chapter Heading 1103.00 of CETA 1985 and it is not Modified Starch classifiable under Chapter heading 35.05 of the CETA, 1985." On such basis, the demands were dropped. 3.5 The department carried the matter in appeal before the Tribunal. The Tribunal, by the impugned judgment, remanded the proceedings before the Commissioner ....
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....pment. The ld. Jt. CDR also pointed out that when the conversion is done by applying the ratios given by Dr. Sharma for comparison between two Viscometers, the result would be that the viscosity in respect of the three samples would come to less than 40. Further this is also supported by the test reports of the laboratory of the respondents themselves, which show that all the varieties of starches under dispute have viscosity of less than 40. Therefore, on the viscosity test alone, the products manufactured by the respondents based on the chemical laboratory appeared to answer the requirements of modified starch rather than plain starch. d. Further the decision of Commissioner of Central Excise, Panchkula in the case of M/s. Bharat Starch Industries Ltd. referred to above also shows that addition of even a very small quantity of a chemical can have effect on the ultimate product." 3.6 On the basis of such observations, the Tribunal remanded the proceedings before the Commissioner for fresh consideration with following observations and directions : "8. In view of the fact that the chemical tests have not been conducted as per the stan....
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....nbsp; Anil Products Limited v. Commissioner of Central Excise, Ahmedabad-II reported in 2010 (257) E.L.T. 523 (Guj.) 2. Commissioner of Central Excise, Noida v. Mil India Ltd. reported in 2008 (222) E.L.T. 497 (All.) 3. Commissioner of Central Excise & Customs, Jaipur v. Reliance Chemotex Industries Ltd. reported in 2002 (146) E.L.T. 277 (Raj.). 7. On the other hand, Mr. Darshan Parikh for the department reiterated his contention that in view of the provisions contained in Section 35L of the Act, the appeal would not be maintainable. He submitted that the entire controversy before the Tribunal pertained to the correct classification of the goods. Even if the questions raised by the appellant do not directly relate to the question of classification, nevertheless in appeal which was under challenge, the judgment of the Tribunal pertained to the question of classification. In support of his contentions, counsel relied on following judgments : 1. In case of Commissioner of Central Excise, Customs & Service Tax, Daman v. Gandhi Fibers reported in 2011 (268) E.L.T. 354. 2. &....
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....2. Clause (b) of Section 35L, provides for appeals to the Supreme Court against any order passed by the Appellate Tribunal where such order relates among other things to determination of any question having a relation to the rate of duty or to the value of goods for the purpose of assessment. The fact that if a particular order relates to classification of goods, same would immediately be covered within the expression a question having relation to the rate of duty is not really in dispute. The fact that the entire question before the Commissioner, whose judgment was the subject matter of the appeal before Tribunal, related to classification of goods is neither disputable nor disputed. We have noted relevant portions of the show cause notice, the order of the Commissioner and also that of the Tribunal which would demonstrate that the central, and in fact, the sole question in controversy between the parties was with respect to correct classification of the goods and its misdeclaration or otherwise by the assessee. The Commissioner, as we have noted, held that the process of manufacturing carried out by the assessee did not bring into existence modified starch and that therefore....
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.... this Court. The fact, that the Tribunal instead of taking a final decision on the issue, remanded the proceedings for fresh consideration before the Commissioner, in our view, would not make any difference. 15. In case of Anil Products Ltd. v. Commissioner of Central Excise, Ahmedabad-II (supra.) this Court considered the objection of the revenue to the maintainability of the appeal on the ground that the issue regarding classification was involved. Such objection was turned down by this Court observing that the main grievance of the appellant was about non-speaking or non-reasoned order passed by the Tribunal. The said decision does not lay down the ratio which can be applied in the present case. 16. In case of Commissioner of Central Excise, Noida v. Mil India Ltd. Allahabad High Court (supra.), the objection to the maintainability of the appeal was turned down on the ground that the question of law presented therein was not the rate of duty or to the value of the goods and the only question raised was whether the order of remand passed by the Commissioner (Appeals) having attained finality, it was open to the respondent to re-agitate the matter before the ....