2011 (1) TMI 96 - AT - Central Excise

Demand classification - Tribunal had classified the disputed product SHARKOFERROL against the claim of the appellant - appellant s plea on limitation was allowed and the matter was remanded to the Commissioner with direction to quantify the duty demand within the limitation period and after extending the benefit of cum-duty-price in terms of provisions of Section 4(4)(d) (ii) of Central Excise Act, 1944 - appellants cannot plead the matter again on merit when the issue stands finally decided by the earlier order and quantification done by the Commissioner, the correctness of which is not being disputed by the learned advocate Appeal rejected

Summary

Issues:
Classification of disputed product SHARKOFERROL, quantification of duty demand within the limitation period, benefit of cum-duty-price, re-arguing the issue on merit.

Classification of disputed product SHARKOFERROL:
The Tribunal had earlier classified the disputed product SHARKOFERROL against the claim of the appellant. The matter was remanded to the Commissioner to quantify the duty demand within the limitation period and after extending the benefit of cum-duty-price in terms of provisions of Section 4(4)(d)(ii) of the Central Excise Act, 1944. The advocate for the appellant tried to re-argue the issue on merit, which was strongly objected to by the SDR. The Tribunal affirmed that the earlier order had already decided the classification issue, and the remand was solely for quantification within the limitation period and applying the cum-duty-price benefit.

Quantification of duty demand within the limitation period:
The Commissioner quantified the duty demand in accordance with the Tribunal's direction as per the earlier order. The advocate for the appellant did not dispute the correctness of this quantification. It was emphasized that the appellant could not re-plead the matter on merit since the issue had been conclusively decided by the earlier order and the quantification by the Commissioner, which was not disputed by the advocate.

Benefit of cum-duty-price:
The Tribunal acknowledged that the quantification done by the Commissioner, including the benefit of cum-duty-price, was correct. The advocate's attempt to re-argue the issue on merit was rejected, as the matter had been conclusively settled by the earlier order and the quantification by the Commissioner.

Re-arguing the issue on merit:
The advocate for the appellant made efforts to re-argue the issue on merit, contending that the earlier order of the Tribunal was incorrect. However, the Tribunal, in agreement with the SDR, held that the classification issue had already been decided in the earlier order, and the appeal was not meritorious. The Tribunal rejected the appeal, stating that the matter could not be re-opened on merit when the issue had been finally determined by the earlier order and the quantification by the Commissioner.

Miscellaneous application for production of Price Notification:
A miscellaneous application was filed for the production of Price Notification issued by DPCO authorities and the cost sheet submitted by the appellant. The Tribunal noted that these documents were relevant to the merits of the case but could not be allowed to be placed on record as the issues had already been decided in the initial round of litigation. The application was accordingly disposed of.