2004 (2) TMI 59

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....roduct. They have termed this letter to be a 'communication letter' and not an appealable order. The ld. DR relies upon a catena of decisions and submits that this letter was consequent to exercise of power vested in the proper officer under 2nd proviso to Rule 9B enabling the said officer to direct and resort to a provisional assessment and no appeal would lie against such communication. 2.The ld. Advocate on the other hand contends that a  reading of the letter in question reveals that it directs a classification of the entity to be made in a particular manner and this impugnes and determines rights and liabilities, which as per the tests laid down by the Hon'ble Supreme Court in the case of Jaswant Sugar Mills Ltd. v. Lakshmi Ch....

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....al Excise Tariff Act, 1985, are not accepted. As the matter is under investigation you as directed to classify the said products for which you are paying Central Excise duty under Chapter Heading 5402.31 & 5402.32 as earlier classification declaration No. 1/2000-01, dated 12-12-2000."             indicates that it has a clear cut direction to classify the impugned entity in a particular manner even though enquiries/investiga- tions were underway. No material is placed before us by Revenue, inspite of an order of this Tribunal in this case vide No. C-II/1535/2003-WZB, dated 26-2-2003 - 2003 (162) E.L.T. 516 (T) as follows : "At the last hearing, the departmental representative r....

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....s and declares rights and imposes an overall fiscal liability on the assessee. Such directions cannot be mere communication of an private opinion or advise by the proper officer. The tests laid down in the case of Jaswant Sugar Mills Ltd. (Supra), relied by both sides, are satisfied. The letter dated 4-9-2001 is found to be a decision/order that could be taken cognisance by Commissioner (Appeals) in the facts of this case when Section 35A of Central Excise Act, 1944 is considered. (c) The fact that Commissioner (Appeals) has issued notice to the proper officer to remain present and represent the department's case and the fact that the matter was under investigation and material has been collected by the proper officer, it is to be h....