Full Judgment
2. None appeared for the appellants in spite of notice, hence we heard the learned DR and perused the records.
3. To understand the issue involved, we can do no better than to reproduce the findings of the Collector (Appeals) which are as under :- "3. I have gone through the records. The appellant has filed 3 appeals against the orders passed by the Assistant Collector of Central Excise, Mysore I Division. Since the issue involved is common to all these appeals, a single order is passed. The appellant has raised two issues. The first is the right of the appellant to reopening of an assessment finalised in terms of the provisions under Section 11B (1) which confer right in any person claiming refund of duty of excise to made an application for refund of the duty and the expression 'any person' includes the buyer of the excisable goods. The second point is that the purchaser has every locus standi to the proceedings relating to classification of the goods of a manufacturer. On merits, the plea is that the goods should have been classified under 7008.10 instead of 7001.90.
4. So far as the preliminary objections are concerned, I have given due consideration to the case laws quoted and the relevant Section (Sec. 11 B). No doubt according to these case laws, assessment can be re-opened even after finalisation by the appropriate authority, but in none of the cases, the purchaser has been shown to have locus standi or the right or interest in the matter of classification dispute between the assessee and the Department. With due respect to the case law cited 1982 (10) E.L.T. 155, I would like to observe that in this case the dispute related to non-levy of additional duty under Section 3(1) of the Customs Tariff Act on import and it was held that the customer or the purchaser can contest the levy of additional duty with reference to Section 64A of the Sale of Goods Act vis-a-vis Section 3(1) of the Customs Tariff Act. The main issue was the power of the Government to levy duty equivalent to Central Excise duty and in this context, the above observation was made, whereas, in the case before me, the basic question is whether under the Central Excises and Salt Act, 1944, the purchaser can have a locus standi with reference to the classification dispute between the manufacturer and the Department. In the circumstances the ratio of this case law will not mutatis mutandis apply to the issue for consideration before me. It is well settled that the excise levy is on 'manufacture' and it is the manufacturer who is required to discharge his obligations as an assessee with reference to the manufacture and clearance of excisable goods under the Central Excises and Salt Act, 1944. According to Section 2 (f), the word 'manufacturer' includes not only a person who employs hired labour in the production or manufacture of excisable goods but also any person who engages in their production or manufacture on his account, but does not include a purchaser or customer. The provisions of Section 11B should be read in the context of the basic provision of Central Excise levy applicable to the manufacturer under Section 2 (f)-Logically, therefore,. Section 11B cannot over-ride the above section extending the Central Excise levy on the purchaser and the customers. If such a view is taken, an anomalous situation will arise by which every purchaser and customer can dispute the correctness or otherwise of the classification leading to plethora of litigation which is not envisaged by the legislature.
I am, therefore, of the view that the case laws have been quoted out of context and the Assistant Collector was correct in not giving access to the assessment documents between the Department and the assessee M/s. Metal Lamp Caps.
5. On merits, I have examined the evidence placed before me. I find that my predecessor had given an elaborate finding on the issue of classification of the subject products and has passed a reasoned order after going through the relevant Central Excise tariff, trade practice etc. with which I respectfully agree. No new evidence has been put forth before me to take a different view. In case the appellant is aggrieved on the classification of the subject goods, it was open for him to take up the matter with the assessee M/s.
Metal Lamp Caps against whom the order-in-appeal referred to above was passed, to enable them to file an appeal against the impugned order. In the circumstances, I find no justification to deviate from the classification already decided and the related matters on the subject products." 4. We agree with the finding that it is not open to the purchaser of the goods to reopen the classification approved by the Proper Officer having jurisdiction over the factory of the manufacturer viz. M/s.
Metal Lamp Caps. Hence, we see no reason to interfere with the impugned order and accordingly uphold the same and reject the appeals.