2007 (7) TMI 473 - AT - Central Excise

Summary

Issues:
1. Redundancy of one appeal filed by the Department against the same impugned order.
2. Challenge of classification by the Applicant Commissioner.
3. Premature demand raised in the show cause notice.
4. Lower Appellate Authority's decision on classification.
5. Direction to the Original Authority for finalizing assessment and classification.

Analysis:
1. The Tribunal addressed the issue of redundancy in the appeals filed by the Department against the same impugned order. The Respondent's advocate pointed out the similarity of the issues raised in both appeals, leading to the dismissal of Appeal No. 449/2003 as redundant. The Department agreed to this proposition, resulting in the dismissal of the redundant appeal.

2. The Applicant Commissioner challenged the classification issue decided by the Lower Appellate Authority. The Lower Appellate Authority, in its impugned order, held that the show cause notice raising a demand was premature due to the provisional assessment. Citing the Supreme Court's decision in a specific case, it was deemed unsustainable. The Applicant Commissioner did not challenge this aspect of the order. The Tribunal noted that the Lower Appellate Authority should not have proceeded to decide the classification issue after deeming the show cause notice as unsustainable. Therefore, the Tribunal set aside the Lower Appellate Authority's decision on classification.

3. The Lower Appellate Authority's decision on the premature demand raised in the show cause notice was crucial. The Authority held that the demand was premature due to the provisional nature of the assessment. This aspect was not challenged by the Applicant Commissioner, leading to the Tribunal's observation on the sustainability of the show cause notice.

4. The Tribunal highlighted the Lower Appellate Authority's error in deciding the classification issue after deeming the show cause notice as premature. The Tribunal directed the Original Authority to finalize the assessment and decide on the classification based on merit and in accordance with the law. It further advised that recourse may be taken to Section 11A of the Central Excise Act, 1944 if necessary after the assessment finalization.

5. In conclusion, the Department's Appeal No. 438/2003 was disposed of with the above observations, emphasizing the need for a proper assessment and classification process in compliance with the law. The Tribunal provided clear directives to the Original Authority for the finalization of assessment and subsequent classification decisions.