TaxTMI 
TaxTMI 
2002 (11) TMI 90
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.... process of appeals, revision, writ petition before the Delhi High Court, then a remand, another round of appeal before the authorities and then ultimately another appeal to the Customs Excise & Gold (Control) Appellate Tribunal ('the Tribunal') which was by then constituted, and from there to this Court by way of this statutory appeal. Thus, this litigation which started by virtue of an order made by the Assistant Collector on 21-01-1976 is now before us in the year 2002. 2. Before the Tribunal, two questions arose for consideration. They are: whether the products manufactured by the appellants are classifiable under Tariff Item 68? If so, the demand made by the Revenue for collection of duty under that head was within the period of limitation. A Bench of the Tribunal which heard the appeal, could not come to a unanimous decision on these questions. The Judicial Member came to the conclusion that the Department was right in classifying the goods under Tariff Item 68 while the Technical Member was of the opinion that the matter should be remanded to the lower Appellate authority for deciding the classification of the products after taking into account the entire material....
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.... favour of the appellants both on facts and in law. He further contended that since the burden of proof that the forgings manufactured by the appellants do fall under Item 68 being heavily on the Revenue and the Revenue having not placed any material in support of its case, the conclusion arrived at by the majority members of the Tribunal that the products manufactured by the appellants fall under Tariff Item 68 cannot be sustained. 6. In regard to the question of limitation, learned Counsel urged that it is an admitted fact that no show cause notice as required in law was ever issued by the appellants, therefore, in the absence of any show cause notice, there could not be any demand at all under Section 11A of the Act. He submitted that the Judicial Member was correct in coming to the conclusion that the order of the Assistant Collector dated 22-1-1976 being a final order, a show cause notice ought to have been issued as required in law within the period of limitation which not having been done, there cannot be a demand. He also contended that the majority members were wrong in coming to the conclusion that the order of the Assistant Collector dated 22-1-1976 was a provisional ....
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....s substantial compliance of the requirement of the said notice. Learned Counsel also argued that in view of the fact that the question of classification was still not finally adjudicated, it was not possible for the Department to issue a show cause notice because of the pendency of the proceedings, therefore, if the requirement of issuance of notice is to be strictly construed in the manner pleaded by the appellants then in many a case where classification dispute is pending, it would become impossible for the revenue to issue a proper notice. Therefore, the requirement of issuance of a notice should be liberally construed. 8. From the above arguments, the very same two questions that arose for consideration before the Tribunal also arise for our consideration. They are (a) Do products manufactured by the appellants fall under Tariff Item 68?(b) Whether the demand of the Revenue is barred by limitation? 9. Though elaborate arguments have been addressed by both the parties in regard to the question of classification, we intend taking up the second question as to the limitation first for our consideration since a decision on this question would render our examination of the fir....
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....regard to the correctness of the said order of the Assistant Collector by way of appeals and revisions, the same does not make the order of the Assistant Collector anything short of a final order, therefore, he rejected the contention of the Revenue on this count. While the Technical Member and the third Member following the judgment of this Court in the case of Samrat International (supra) came to the conclusion that the order of the Assistant Collector could be treated as a provisional order because there was correspondence regarding the excitability and the classification list filed by the appellants. From the above we notice that the majority of the members of the Tribunal based their finding that the clearances made by the appellants during the relevant period was provisional in nature mainly because of the finding of this Court in the case of Samrat International (supra). A perusal of this judgment shows that the said judgment was delivered on the peculiar facts of that case and it does lay down a principle in law which enables the Revenue to treat every classification made by it or the goods removed by virtue of said classification to be treated as the provisional merely bec....
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....al Government dated 2-8-1980." 14. Based on this interim order, learned Counsel for the Revenue contended that the Revenue could not have issued a show cause notice during the currency of the said interim order, therefore, by virtue of the Explanation to Section 11A, the period of limitation gets frozen during the said stay order. We cannot accept this argument either. It is a settled position in law that unless and until there is a specific injunction/stay granted by a competent court which restrains an authority from issuing the required notice, merely because some interim order is made, the authorities empowered to issue such notice cannot refrain from issuing the required notice within the period of limitation nor can they plead the existence of such interim order as a defence against the plea of limitation. This Court in Gokak Patel Volkart Ltd. v. Collector of Central Excise, Belgaum [1987 (28) E.L.T. 53] has held where by an interim order the High Court merely stays the collection of excise duty which, the benefit of Explanation to Section 11A excludes the period of stay order is not available to the Revenue. The said judgment also holds that the issuance of notice under ....