2015 (1) TMI 935 - AT - Central Excise

Waiver of pre-deposit - Levy of the duty short-paid along with interest and penalty - Classification of goods - whether the product Milk Treat is classifiable under Chapter sub-heading 1905 32 11 (coated with chocolate or containing chocolate) or under sub-heading 1905 32 19 (other) - Held that - Rule 16 of the CESTAT (Procedure) Rules, 1982 requires that the appellant shall, along with the appeal or within one month of filing of the appeal, submit, inter alia a paper book containing copies of the documents, statements of witnesses and other papers on the file of or referred to in the orders, of the departmental authorities, which he proposes to rely upon at the hearing of the appeal. Non-filing of RUDs with the memorandum of appeal is of no consequence and does not amount to violation of Rule 16 of CESTAT (Procedure) Rules, 1982. The contention, repeatedly asserted by the ld. AR is frivolous and wholly irrelevant. That the ld. AR has refused to make submission on the merits of the stay application, we record, that is a conscious choice made on behalf of Revenue. Be that as it may. We however record our disapprobation of the insistence by the AR that the stay application ought not to be heard till RUDs mentioned in the show cause notice are filed by the petitioner/appellant. - In the light of the decision of the Tribunal in Ravalgaon Sugar Farm Ltd. v. C.C.E., Ahmedabad 2000 (7) TMI 308 - CEGAT, NEW DELHI and the detailed stay order passed by this Tribunal in the petitioner s own case (in respect of an earlier period), the petitioner is seen to have a strong prima facie case in its favour. - Stay granted.

Summary

Issues:
Classification of product "Milk Treat" under Central Excise Tariff Act, 1985; Appeal against order of Commissioner (Appeals) rejecting appeal; Waiver of pre-deposit and stay of further proceedings for recovery of assessed liability; Dispute on classification under Chapter sub-heading 1905 32 11 or 1905 32 19; Preliminary objection on appeal maintenance due to non-filing of RUDs.

Detailed Analysis:

1. The appellant, a manufacturer, appealed against the order of the Commissioner (Appeals) regarding the classification of "Milk Treat" under the Central Excise Tariff Act, 1985. The dispute arose from the classification under Chapter sub-heading 1905 32 11 by the Revenue, leading to a short-remittance of duty by the appellant.

2. The appellant sought waiver of pre-deposit and stay of further proceedings. The Revenue issued a show cause notice proposing duty recovery, interest, and penalty based on the alleged short payment. The dispute centered on whether "Milk Treat" should be classified under sub-heading 1905 32 11 or 1905 32 19.

3. The appellant contended that the product should be classified under sub-heading 1905 32 19, citing previous orders and HSN explanatory notes. The Primary Authority classified the product under sub-heading 1905 32 11, leading to the duty demand, which was confirmed by the adjudicating authority and upheld by the Commissioner (Appeals).

4. The appellant's appeal was challenged on the grounds of non-filing of RUDs as required by Rule 16 of the CESTAT (Procedure) Rules, 1982. The appellant argued that RUDs were irrelevant to the classification issue and hence not submitted.

5. The Tribunal found the non-filing of RUDs to be inconsequential to the appeal's maintenance, dismissing the Revenue's objection. Citing past decisions and stay orders, the Tribunal acknowledged the appellant's strong prima facie case in its favor and granted waiver of pre-deposit and stay of further proceedings pending appeal disposal.

6. Based on the Tribunal's analysis and reasons, the appeal was granted in favor of the appellant, emphasizing the strong prima facie case presented. The Tribunal communicated its decision to the C.B.E & C. for information, concluding the case.

This detailed analysis encapsulates the legal nuances and procedural aspects involved in the judgment, providing a comprehensive understanding of the issues addressed and the Tribunal's decision.