TaxTMI 
TaxTMI 
1987 (8) TMI 119
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....oners contended that the motor and blade assembly would not constitute an electric fan as recognised in commercial and technical parlance. They further contended that they were merely components of refrigeration and air-conditioning machinery manufactured by them. They, therefore, contended that the same could not have been classified under Tariff Item 33(2), of Central Excise Tariff. This contention was negatived by all the authorities till the matter came before the Government in revision sometime in 1980. However, at the time of hearing of this matter, it was pointed out that even though the goods are not covered under Tariff Item 33(2), they could be classified under Item 33(3), i.e., "Electric Fans not otherwise specified." Thereupon t....
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....gned goods under Item 33(3) has come up for the first time at the revisionary stage and also taking note of the fact that the rate of duty under Item 33(2) and 33(3), Central Excise Tariff was the same at the material time, Government consider that it would be in the fitness of things if the issue of confirmation of the demand with reference to Item 33(3), Central Excise Tariff were left to the lower authorities. Having regard to the foregoing Government set aside the two orders in appeal by which the impugned goods have been held as classifiable under Item 33(2), CET. Government would, however, make it clear that this order is passed without prejudice to the Assistant Collector adjudging afresh the question of confirmation of the demand....
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....d should not be confirmed as payable under Item 33(3) of the said tariff. The petitioners pointed out that was not payable inasmuch as there was no classification under Tariff Item 33(3) of the Central Excise Tariff at all. They also pointed out that no adjustment was possible unless proper procedure was not (sic) followed in that behalf. They also pointed out that till such time the classification was done, there was no question of any adjustment of duty paid earlier. 3. This was negatived by the Assistant Collector by his order dated 18-11-1981. It is this order which is challenged in this petition. 4. The Assistant Collector passed the said impugned order on certain basic misconceptions as to the order passed by the Government in r....
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....duty payable on the impugned goods under T.I. 33(3) would be the same as already paid by M/s. Blue Star Ltd. In view of this, I hold that the duty which has already been paid by the party under T.I. 33(2) stands confirmed as duty paid on the impugned goods under T.I. 33(3). Since the amounts of duty payable under either sub-item would be same, there is no question of any excess amount paid by the party." 5. In my view this is a clear case of complete misdirection on the part of the Assistant Collector of Central Excise. The Government had left the issue open and had in fact remanded the matter back to the lower authorities who were to hear the matter afresh after issuing a show cause notice. Therefore, no classification had been done as ....