2005 (6) TMI 452 - AT - Central Excise

Summary

Issues:
1. Whether the demand of differential duty is barred by limitation.
2. Classification of the product under Central Excise Tariff sub-heading.
3. Applicability of show cause notice under Section 11A of the Central Excise Act.

Analysis:
1. The main issue in this case was whether the demand of the differential duty was barred by limitation. The Revenue contended that the duty was provisionally assessed initially and subsequently finalized, thus no show cause notice was required. However, the Tribunal disagreed with this argument. They referred to the Apex Court decision in Serai Kella Glass Works Pvt. Ltd. v. CCE, Patna, where it was held that a show cause notice under Section 11A of the Central Excise Act is not required for demand as a consequence of finalization of assessment. The Tribunal also cited the case of Bhansali Engineering Polymers Ltd. v. CCE, Bhopal, which supported this view. Therefore, the Tribunal held that the Commissioner (Appeals) erred in treating the demand as barred by limitation and allowed the appeal.

2. Another issue raised was the classification of the product under the Central Excise Tariff sub-heading. The product in question was block-board, and the Supreme Court had already classified it under sub-heading 4408.90 in the case of Wood Craft Products Ltd. The assessee claimed that the classification should be under sub-heading 4410.90 based on their own case. However, the Tribunal rejected this argument, stating that the Supreme Court's decision prevailed. Therefore, the contention of the assessee regarding the classification was not accepted.

3. The final issue involved the applicability of the show cause notice under Section 11A of the Central Excise Act. The Tribunal clarified that such a notice is required only in cases of short levy, non-levy, or erroneous refund, as per the decision in Serai Kella Glass Works Pvt. Ltd. v. CCE, Patna. The Tribunal emphasized that the demand raised under the show cause notice dated 2-3-1993 was not barred by limitation and set aside the finding of the Commissioner (Appeals) on this matter, ultimately allowing the appeal brought by the Revenue.