Judgment:
1.This is an application for seeking stay of the operation of the impugned order of the Collector of Central Excise (Appeals) Bangalore, dated 27-10-1993.
2. Shri Natarajan, the learned Consultant for the petitioner submitted that the issue involved is with reference to classification of the waste and scrap of telecommunication cables of various types arising during the course of manufacture of insulated cables and laminated cables which are meant exclusively for the Department of Telecommunication, Govt. of India. It was submitted that for the period 1989 to 1991 the petitioner herein chose to classify the goods under heading 7404.00 and the petitioner contended that the goods are not excisable at all, while the Asstt. Collector of Central Excise, Mysore, by his order dated 21-1-1991 took the view that the goods were classifiable under Tariff 85.44 of 1985. The petitioner challenged the same in appeal before the Collector of Central Excise (Appeals), Bangalore, who by his order-in-Appeal No. 131/91 dated 25-4-1991 set aside the order of the Astt. Collector holding that the goods were not classifiable under 85.44 and giving liberty to the Astt. Collector to reclassify under any other heading. This order became final without being not appealed against. In such a situation the Astt. Collector once again, after issue of series of show cause notices on 24-9-1992, 25-2-1993 etc. passed an order dated 31-5-93 classifying the goods once again under the same heading i.e. 85.44 which had been earlier set aside. This order was again challenged in appeal and the learned Collector (Appeals), Bangalore who is a different appellate authority, without taking note of the finality reached on the issue earlier, confirmed the order of the Astt. Collector. It was submitted that in law, once an order in regard to a particular issue has been allowed to become final and the order has been passed by a competent authority, the same cannot be again revised and on this ground the learned Consultant prayed for stay of the operation of the impugned order.
3. Shri Subramanian, the learned D.R. submitted that this being a classification issue, the Department would be taking out an application for early resolution of the dispute.
4. On going through the records we find that no duty is involved in the appeal and the issue is with reference to classification. We find that the learned Collector (Appeals) by order dated 25-4-1991 cited supra has observed as under: "The present appeal is on all fours with the decision cited above.
Scrap arises during the manufacture of wires and cables. They are purchased and cut and removed as scrap. Further heading 85.44 does not contain any entry to cover the scrap produced by the appellants.
The scrap cannot be equated with wires and cables. 1 accordingly follow the decision of the Hon'ble Tribunal in the case of Mamath Packaging Pvt. Ltd., cited above and set aside the order of the Astt. Collector and allow the appeal.
The present appeal is a similar one referred to above. In the light of the decisions of the Hon'ble High Court and the CEGAT. I set aside the order of the Astt. Collector and allow the appeal. This order will not prevent the Assistant Collector from classifying the product under any other item specified in the Schedule to the Central Excise Tariff Act." When the classification adopted by the Astt. Collector was challenged and the same was set aside as aforesaid, giving liberty to the Astt.
Collector to reclassify it under any other heading, prima facie it would not be permissible to the Astt. Collector to again reclassify it under 85.44 for the same period and in the teeth of the order of the learned Collector (Appeals). In this view of the matter we hold, prima facie the impugned order dated 27-10-1993 of the learned Collector (Appeals) is not sustainable. Therefore, without expressing any opinion on the merits of the issue, on prima facie ground we grant stay of the operation of the impugned order, pending appeal. We hope, the Department would take early steps for hearing of this appeal before the Special Bench, CEGAT, New Delhi, as the issue relates to classification and may have recurring effects. The appeal papers are transmitted to Special Bench, CEGAT, New Delhi.