Judgment:
1. The short point involved in the present appeal is the classification of rubberised dipped nylon tyre cord fabrics and their liability to the additional excise duty. The Revenue has held that the said product is properly classifiable under Heading 59.02 whereas the appellants' contention is that the said rubberised dipped nylon tyre cord fabrics would fall under Heading 5906 attracting nil rate of additional duty of excise.
2. Dr. Samir Chakraborty, ld. adv. appearing for the appellant submits that the issue is no more 'res Integra' and has been settled by the various decisions of the Tribunal holding that the dipped nylon tyre cord fabric is properly classifiable under Heading 59.06. He submits that the Commissioner has not appreciated the above decisions of the Tribunal and have not followed the same. He also draws our attention to the Board's Circular No. 566/3/2001-CX., dt. 22-1-2001 wherein reference has been made to the various decisions of the Tribunal holding that such fabrics is classifiable under Heading 59.06 but it has been observed that the said decisions of the Tribunal have not been accepted and civil appeals filed in these cases have been admitted by the Supreme Court. Dr. Samir Chakraborty submits that admission of appeals by the Supreme Court by itself is not sufficient to stay the operation of the Tribunal's order in the absence of a specific stay by the Apex Court. As such he submits that the impugned order be set aside.
3. He also assails the impugned order on the point of limitation and submits that the entire relevant information was there with the Revenue. The Commissioner has observed that since they were agitating the matter they were aware of the excisability and the dutiability of the product and have intentionally evaded the same. He submits that there is no misstatement or suppression on their part and the longer period of limitation was not available to the Revenue.
4. Shri N.K. Mishra, ld. JDR appears for the Revenue and submits that the earlier decisions of the Tribunal have not been accepted by the Board and it has been made clear vide Circular dt. 22-1-2001 that the same are under challenge before the Hon'ble Supreme Court. As regards limitation, ld. JDR reiterates the reasoning of the adjudicating authority.
5. We have considered the submissions made from both the sides. We find that there are umpteen number of decisions as detailed above holding the classification of the product under Heading 59.06. All these decisions have not been considered by the adjudicating authority and the applicability of the ratio of the same to the appellants' product has not been examined. As such we set aside the impugned order and remand the matter to the Commissioner for de novo adjudication in the light of the law laid down by the Tribunal in the above mentioned judgments. The Commissioner would also look into the aspect of limitation afresh after taking into consideration the appellants' pleas and submissions. Appeal is thus allowed by way of remand.