Grindwell Norton Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:

.....the issue has not been considered by the department. he said that the department had relied upon the decision in the case of sirpur paper mills and arrived at the conclusion without examining the factual position in the instant case.3. smt. radha arun, sdr appearing for the revenue justified the classification under chapter heading 84.79. she fairly conceded that there was no clear finding with reference to the plea that they are two separate factories. in view of this she has no objection to remand the matter to the concerned adjudicating authority.4. we have carefully considered the matter. in the facts and circumstances of the case and on submissions made by the sides, we are of the view that the entire matter requires to be reconsidered. in the view we have taken we are remanding the matter to the concerned adjudicating authority to examine all the issues including limitation point and to pass an appropriate order on providing and opportunity to the party. the appellant is at liberty to substantiate his claim during the re-adjudication proceedings. thus this appeal is allowed by way of remand. ordered accordingly.

Judgment:

1. Shri Ravindran, learned Advocate appearing for the appellants submitted that the issue relates to demand of duty on determination of erection of plant at site as machineries under Chapter 8479.00 and imposing penalty and redemption fine.

2. He submitted that Jumbo Coating Plant I and Jumbo Coating Plant II are independent plants. They are two separate independent factories; but the Commissioner had arrived at the conclusion that they are two machines. He said that it is well settled law when the revenue raises a demand on an item the burden is on the department to classify the item under the particular heading attracting the particular rate of duty.

Apart from stating that the Jumbo Coating Plants are two machines and that they are movable and marketable no material has been brought on record by the Department to prove its case. He also submitted that these plants are neither marketable nor movable. Although the party has taken a specific plea with reference to marketability the issue has not been considered by the department. He said that the department had relied upon the decision in the case of Sirpur Paper Mills and arrived at the conclusion without examining the factual position in the instant case.

3. Smt. Radha Arun, SDR appearing for the Revenue justified the classification under Chapter heading 84.79. She fairly conceded that there was no clear finding with reference to the plea that they are two separate factories. In view of this she has no objection to remand the matter to the concerned adjudicating authority.

4. We have carefully considered the matter. In the facts and circumstances of the case and on submissions made by the sides, we are of the view that the entire matter requires to be reconsidered. In the view we have taken we are remanding the matter to the concerned adjudicating authority to examine all the issues including limitation point and to pass an appropriate order on providing and opportunity to the party. The appellant is at liberty to substantiate his claim during the re-adjudication proceedings. Thus this appeal is allowed by way of remand. Ordered accordingly.