2010 (10) TMI 93 - AT - Central Excise

Appeal - This is against an order passed by the Commissioner under Rule 16B of the Central Excise Rules, 2002 - declining permission for removal of copper anode and copper cathode - these goods were cleared to their sister unit for conversion into finished goods which were to be removed for home consumption on payment of duty or for export without payment of duty - SDR has raised a preliminary objection to the effect that the appeal is not maintainable as the impugned order, according to him, is an administrative order - Held that - Commissioner appears to have overlooked the fact that these goods were cleared to their sister unit for conversion into finished goods which were to be removed for home consumption on payment of duty or for export without payment of duty. If the goods resulting from the processing of copper anode and copper cathode were to be accepted as finished goods to be cleared in the aforesaid manner, the copper anode and copper cathode were to be legitimately treated as semi finished goods, which attracted Rule 16B - Rule 16B applicable

Issues:
1. Maintainability of the appeal as per Rule 16B of the Central Excise Rules, 2002.
2. Classification of goods as finished or semi-finished.
3. Interpretation of Rule 16B for permission to remove goods between units.
4. Consideration of previous permissions and consistency in decision-making.

Issue 1: Maintainability of the appeal
The Tribunal addressed the preliminary objection raised by the ld. SDR regarding the maintainability of the appeal, contending that the impugned order was administrative. The Tribunal overruled this objection, emphasizing that the order passed by the Commissioner, labeled as "ORDER-IN-ORIGINAL," was found to be prejudicial to a valuable right claimed by the manufacturer under Rule 16B. The Tribunal clarified that such an order is issued in a quasi-judicial capacity and not administrative, as it was passed in adjudication of a show-cause notice.

Issue 2: Classification of goods
The Commissioner's order contended that the goods in question, copper anode and copper cathode, were finished goods and not semi-finished goods, thereby suggesting that Rule 16B was not applicable. However, the Tribunal noted that these goods were cleared to a sister unit for conversion into finished goods, indicating they should be treated as semi-finished goods under Rule 16B. The Tribunal highlighted the inconsistency in the Commissioner's stance, as the goods had been previously accepted as semi-finished for permission under Rule 16B without any change in the manufacturing process or the law.

Issue 3: Interpretation of Rule 16B
The Tribunal examined the application of Rule 16B, which allowed the movement of goods between units for further processing. In this case, the permission to remove copper anode and copper cathode for conversion into continuous copper rods was at the center of the dispute. The Tribunal emphasized that the goods' intended use and the process of conversion should determine their classification as finished or semi-finished goods under Rule 16B.

Issue 4: Consistency in decision-making
Considering the previous permissions granted for the movement of goods between units under Rule 16B, the Tribunal highlighted the importance of consistency in decision-making. The Tribunal found the Commissioner's order inconsistent with past practices and granted the appeal, setting aside the Commissioner's decision based on the facts and circumstances presented during the hearing.

In conclusion, the Tribunal allowed the appeal, emphasizing the correct interpretation and application of Rule 16B in permitting the movement of goods between units for further processing, ensuring consistency and fairness in decision-making.

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