M/S. Kempson Foundry Vs. Cenral Excise, Bangalore - Court Judgment

Excerpt:
1. this appeal arises out of and directed against the impugned order dated 31.3.94 passed by the collector of central excise & customs (appeals), bangalore. the dispute is in respect of classification of iron costings. according to the party the items are classifiable under heading 73.07 upto 29.2.1998 and 1.3.98 onwards the same item is classifiable under 7325.10. the plea of the party was also accepted by the ac as can be seen from his order. not being satisfied with the findings of the ac on classification the department has filed an appeal before the commissioner. commissioner accepted the contention of the department in holding that item falls under chapter 85. aggrieved by the said order the party has come in appeal before the tribunal. shri monappa, arguing for the assessee drew our attention to the finding portion of the ac as per page no.4 of his order. on the other hand ms.radha arun, sdr, referred to the finding portion in para 7 of the commissioner wherein it was observed that the appellant would have to prove on the basis of facts that the subject goods at the material time mere iron costings falling under chapter 73 and nothing more than that.she submitted that no evidence has been placed on record to substantiate that iron costings are classifiable under chapter 73 since no further processing was done. in view of the factual discrepency we are of the view that the matter requires re-examination. it was also submitted by the party that issue with reference to the classification has already been covered by the decision of the tribunal in the case of shivaji works ltd., vs. cce, aurangabad, 1994(69) elt 674. it was also brought to our notice by the department representative that the said decision was not there at the time of passing the order by the commissioner(appeals). taking into overall facts and circumstances we are remanding the matter to the jac to examine the issue afresh and to pass an appropriate order in accordance with the law on providign an opportunity to the party. the party is at liberty to take all the other connected pleas during the re-adjudication proceedings. thus this appeal is allowed by way of remand.

Judgment:
1. This appeal arises out of and directed against the impugned order dated 31.3.94 passed by the Collector of Central Excise & Customs (Appeals), Bangalore. The dispute is in respect of classification of iron costings. According to the party the items are classifiable under heading 73.07 upto 29.2.1998 and 1.3.98 onwards the same item is classifiable under 7325.10. The plea of the party was also accepted by the AC as can be seen from his order. Not being satisfied with the findings of the AC on classification the department has filed an appeal before the Commissioner. Commissioner accepted the contention of the department in holding that item falls under chapter 85. Aggrieved by the said order the party has come in appeal before the Tribunal. Shri Monappa, arguing for the assessee drew our attention to the finding portion of the AC as per page No.4 of his order. On the other hand Ms.

Radha Arun, SDR, referred to the finding portion in para 7 of the Commissioner wherein it was observed that the appellant would have to prove on the basis of facts that the subject goods at the material time mere iron costings falling under Chapter 73 and nothing more than that.

She submitted that no evidence has been placed on record to substantiate that Iron Costings are classifiable under Chapter 73 since no further processing was done. In view of the factual discrepency we are of the view that the matter requires re-examination. It was also submitted by the party that issue with reference to the classification has already been covered by the decision of the Tribunal in the case of Shivaji Works Ltd., Vs. CCE, Aurangabad, 1994(69) ELT 674. It was also brought to our notice by the Department Representative that the said decision was not there at the time of passing the order by the Commissioner(Appeals). Taking into overall facts and circumstances we are remanding the matter to the JAC to examine the issue afresh and to pass an appropriate order in accordance with the law on providign an opportunity to the party. The party is at liberty to take all the other connected pleas during the re-adjudication proceedings. Thus this appeal is allowed by way of remand.