Colt Cables Pvt. Ltd. Vs. Cce

Colt Cables Pvt. Ltd. vs Cce

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Mar 06, 2002

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Citation: sooperkanoon.com/27777
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: J Balasundaram, J T J.H.
Decided On: Mar 06, 2002
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Colt Cables Pvt. Ltd.

Respondent

Cce

Legal References

Reported In: (2002)(104)LC814Tri(Mum.)bai

Excerpt

.....to whom the assessee preferred an appeal dismissed their appeal on the ground that the assessee, not having filed any appeal against the approval of classification of the product, were resisting the duty demand by reopening the issue of classification.4. we find that in a series of decisions by the tribunal, the earliest among them being the decision in the case of rajasthan spinning and weaving mills v. cce that it has been held that when the whole issue is opened before the tribunal the matter of classification also falls for determination irrespective of the fact that the appellants failed to agitate the classification issue at the right stage by adopting the remedy of appeal. the same view has been taken by the tribunal in the case of lili foam industries (p) ltd. v.cce . recent decision of the tribunal taking the same view is in the case of kalyani lemmerz limited v. cce 2002 (48) rlt 362. in the light of the above decisions we hold that the commissioner (appeals) has erred in dismissing the appeal of the assessee on the ground that they did not challenge the classification issue by filing an appeal against the approval of the classification lists.5. further on the issue of classification of the goods, which are in dispute, there is a direct decision of the larger bench of the tribunal in the case of cce v. fykays engineering pvt. ltd. wherein classification of thermocouple leads has been confirmed under heading 90.25, ruling out classification of the same under heading 85.44. since the goods in dispute before us in the present appeal are parts of the main instrument they fall for classification under heading 90.33 as claimed by the appellants.

Full Judgment

1. We waive pre-deposit of duty of Rs. 2,77,503/- and penalty of Rs. 3 lakhs, and proceed to decide the appeal itself with the consent of both sides.

2. The brief facts of the case are that the appellants herein filed CL.

No. 9/89-90 w.e.f. 10.1.1990, CL. No. 10/89-90 w.e.f. 20.3.1990, CL.

No. 1/90-91 w.e.f. 1.4.1990 for their product Thermocouple Compensating Extension Cable' under Chapter Heading 90.33 chargeable to duty @ 15% ad valorem of basic duty and 5% special duty. These classification lists were provisionally approved.

3. However, show cause notice dated 10.12.1991 was issued calling upon them to show cause as to why the product in question should not be classified under Chapter Heading 85.44 attracting duty @ 25% ad valorem basic duty and 5/10% special duty according to the relevant period. The Assistant Commissioner vide his order dated 24.2.1997 con-firmed the classification under Heading 85.44 and ordered recovery of the differential duty. The Range Superintendent therefore finalised the assessment of RT-12 returns, quantified the differential duty and directed the assessee to pay. Since the assessee failed to pay the duty, notice proposing recovery of differential duty and proposing imposition of penalty was issued and came to be adjudicated by the Assistant Com-missioner vide his order dated 17.1.2000 by which the duty demand and penalty as set out above were confirmed. The Commissioner (Appeals) to whom the assessee preferred an appeal dismissed their appeal on the ground that the assessee, not having filed any appeal against the approval of classification of the product, were resisting the duty demand by reopening the issue of classification.

4. We find that in a series of decisions by the Tribunal, the earliest among them being the decision in the case of Rajasthan Spinning and Weaving Mills v. CCE that it has been held that when the whole issue is opened before the Tribunal the matter of classification also falls for determination irrespective of the fact that the appellants failed to agitate the classification issue at the right stage by adopting the remedy of appeal. The same view has been taken by the Tribunal in the case of Lili Foam Industries (P) Ltd. v.CCE . Recent decision of the Tribunal taking the same view is in the case of Kalyani Lemmerz Limited v. CCE 2002 (48) RLT 362. In the light of the above decisions we hold that the Commissioner (Appeals) has erred in dismissing the appeal of the assessee on the ground that they did not challenge the classification issue by filing an appeal against the approval of the classification lists.

5. Further on the issue of classification of the goods, which are in dispute, there is a direct decision of the larger bench of the Tribunal in the case of CCE v. Fykays Engineering Pvt. Ltd. wherein classification of thermocouple leads has been confirmed under Heading 90.25, ruling out classification of the same under Heading 85.44. Since the goods in dispute before us in the present appeal are parts of the main instrument they fall for classification under Heading 90.33 as claimed by the appellants.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Colt Cables Pvt. Ltd. vs Cce Same Subject Service Tax Same Judge J Balasundaram, J T J.H.