2007 (6) TMI 14 - AT - Central Excise

Demand Department contended that appellant liable to pay demand of duty even if the short-levy is on account of any prior approval, acceptance or assessment as per the retrospective amendment to section 11A of CEA,1944 Hon ble Supreme Court set aside the demand

Summary

Issues:
Classification of goods under different headings, retrospective amendment of Section 11A, enforceability of demand raised after a Section 37B order.

Classification of Goods:
The dispute revolved around the classification of STD/PCO Monitors under different headings during specific periods. The respondent argued that they classified the goods under Heading 90.29 based on the department's direction until a Section 37B order was issued on 5-4-99. The demand raised for the period prior to 5-4-99 was contested by relying on various legal decisions supporting prospective application of classification changes ordered by the Board. The appellant contended that the retrospective amendment of Section 11A allowed for the demand to be raised irrespective of prior approval or assessment.

Retrospective Amendment of Section 11A:
The department argued that the retrospective amendment of Section 11A by the Finance Act, 2000, allowed for the demand to be raised even if the short-levy was due to prior approval or assessment. They cited the decision in the case of ITW Signode India Ltd., where the validity of the retrospective amendment was upheld by the Supreme Court. The department contended that the demand based on the approved classification list could be made for six months before the issuance of the Show Cause Notice.

Enforceability of Demand after Section 37B Order:
The Tribunal analyzed the retrospective amendment of Section 11A in light of the demand raised after a Section 37B order issued on 5-4-99. Despite the validation of the retrospective amendment by the Supreme Court, the Tribunal held that the demand in the present case was not justified as it was raised only after the Section 37B order. The Tribunal referred to legal precedents such as H.M. Bags Manufacturer and Suchitra Components Ltd., emphasizing the right of the assessee to claim enforcement of Board's circulars prospectively when they are against the assessee. Consequently, the Tribunal rejected the Department's appeals, citing the applicability of the aforementioned legal decisions to the case at hand.