C.C.E. Vs. Bharat Engg. and Body Building Co. - Court Judgment

Excerpt:
1.the respondents are absent in spite of today's notice of hearing.however, our attention has been drawn to the fax message, dated 8th january, 2001 praying for adjournment on the ground that the respondents have to file the cross-objection. we turn down the said request of adjournment inasmuch as the issue is already decided by the hon'ble supreme court's decision and by the larger bench decision of the tribunal as discussed in the succeeding paragraph. we also observe that the impugned order has granted the relief to the respondents in toto and as such no cross-objection can be legally filed by the appellants. accordingly, we proceed to hear the ld. sdr, shri v.k.chaturvedi.2. this is an appeal filed by the revenue against the order of the commissioner (appeals) vide which he has set aside the order of the assistant commissioner classifying the body built of chassis as falling under heading 8707.00 and by holding that the same would be properly classifiable under headings 8702 and 8704 after the insertion of chapter note 3 of chapter 87. while holding so, the commissioner of central excise (appeals) has relied upon the board's circular no.447/13/99-cx., dated 22-3-99. the said circular was issued after the tribunal's decision in the case of katnal auto industries reported in 1996 (82) e.l.t. 558 (tribunal) and quoted that since the department has not accepted the interpretation given by the tribunal and has filed an appeal in the hon'ble supreme court against the said order of the tribunal. now we find that that the hon'ble supreme court has dismissed the appeal filed by the revenue on the ground of limitation as also on merits. such dismissal of the order of the hon'ble supreme court has been taken note by the larger bench decision of the tribunal in the case of ambala coach builders v. commissioner of central excise, new delhi reported in 2000 (119) e.l.t. 713 (tribunal-lb) and it has been observed that since the issue is set at rest by the hon'ble supreme court's order, reference to the larger bench does not survive. the result of this development is that the body built on chassis continues to fall under chapter heading 8707 even after the insertion of chapter note 4 (later on re-numbered as note 3) to chapter 87 of the schedule to central excise tariff act, 1985 in 1991. as such, the impugned order passed by the commissioner (appeals) holding the goods as classifiable under 87.02 or 87.04 is against the law laid down by the hon'ble supreme court and is required to be set aside. we order accordingly and restore the order of the assistant commissioner. appeal is thus allowed in the above terms.

Judgment:
1.The respondents are absent in spite of today's notice of hearing.

However, our attention has been drawn to the Fax Message, dated 8th January, 2001 praying for adjournment on the ground that the respondents have to file the Cross-Objection. We turn down the said request of adjournment inasmuch as the issue is already decided by the Hon'ble Supreme Court's decision and by the Larger Bench decision of the Tribunal as discussed in the succeeding paragraph. We also observe that the impugned order has granted the relief to the respondents in toto and as such no Cross-Objection can be legally filed by the appellants. Accordingly, we proceed to hear the ld. SDR, Shri V.K.Chaturvedi.

2. This is an appeal filed by the Revenue against the order of the Commissioner (Appeals) vide which he has set aside the order of the Assistant Commissioner classifying the body built of chassis as falling under Heading 8707.00 and by holding that the same would be properly classifiable under Headings 8702 and 8704 after the insertion of Chapter Note 3 of Chapter 87. While holding so, the Commissioner of Central Excise (Appeals) has relied upon the Board's Circular No.447/13/99-CX., dated 22-3-99. The said Circular was issued after the Tribunal's decision in the case of Katnal Auto Industries reported in 1996 (82) E.L.T. 558 (Tribunal) and quoted that since the Department has not accepted the interpretation given by the Tribunal and has filed an appeal in the Hon'ble Supreme Court against the said order of the Tribunal. Now we find that that the Hon'ble Supreme Court has dismissed the appeal filed by the Revenue on the ground of limitation as also on merits. Such dismissal of the order of the Hon'ble Supreme Court has been taken note by the Larger Bench decision of the Tribunal in the case of Ambala Coach Builders v. Commissioner of Central Excise, New Delhi reported in 2000 (119) E.L.T. 713 (Tribunal-LB) and it has been observed that since the issue is set at rest by the Hon'ble Supreme Court's Order, reference to the Larger Bench does not survive. The result of this development is that the body built on chassis continues to fall under Chapter Heading 8707 even after the insertion of Chapter Note 4 (later on re-numbered as Note 3) to Chapter 87 of the Schedule to Central Excise Tariff Act, 1985 in 1991. As such, the impugned order passed by the Commissioner (Appeals) holding the goods as classifiable under 87.02 or 87.04 is against the law laid down by the Hon'ble Supreme Court and is required to be set aside. We order accordingly and restore the order of the Assistant Commissioner. Appeal is thus allowed in the above terms.