1999 (6) TMI 447 - AT - Central Excise

Summary

Issues:
Classification of Johnson & Johnson's prickly heat powder under Central Excise Tariff, time-barred show cause notice, pending classification issue before Bombay High Court, premature show cause notice, infructuous appeal, demand being time-barred.

Classification Issue:
The appellants manufactured Johnson & Johnson's prickly heat powder under a loan license basis and claimed classification under sub-heading 3003.19 of the Central Excise Tariff. However, a show cause notice was issued for classification under sub-heading 3003.90. The Collector of Central Excise held that the issue was pending before the Bombay High Court and directed the jurisdictional authority to finalize the classification list. The appellants argued that the show cause notice was time-barred as they had filed a detailed classification list. The Collector's order mentioned that the classification lists were approved subject to a chemical test, and he did not propose any action on the show cause notice, rendering the appeal infructuous.

Pending Classification Issue:
The Bombay High Court had a pending Writ Petition filed by Johnson & Johnson Ltd. regarding the classification of their products. An interim order restrained the Union of India from levying or demanding any differential duty on the products under Chapter Heading 3003 during the pendency of the Writ Petition. The Collector of Central Excise did not give any finding on the classification issue in the impugned order due to the matter being sub judice.

Premature Show Cause Notice Issue:
The Collector of Central Excise held that the show cause notice was premature and did not propose any action on it. This decision led to the appellants' appeal being considered infructuous. If the Revenue decides to issue a fresh show cause notice, the appellants can raise the issue of limitation, which will be decided by the adjudicating authority accordingly.

Time-Barred Demand Issue:
The appellants contended that the demand was time-barred. The Collector's order stating the show cause notice was premature allowed the appellants to challenge the issue of limitation if a fresh notice was issued. The appeal was disposed of with these considerations, leaving the option open for the appellants to address the limitation issue if necessary.

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