2018 (11) TMI 1757 - AT - Central Excise

Classification of manufactured goods - Compounded levy scheme - whether the goods manufactured by the appellant are classifiable as Chewing Tobacco (CT) under chapter heading 24039910, or whether as Zarda Scented Tobacco(ZST) under Chapter heading 2419930? - principles of natural justice - HELD THAT - Perusal of various reports produced, indicates that all the chemical characteristics required for determination of products as to whether ZST or CT have not been discussed by the CRCL in its report. The CRCL has although considered the criteria of moisture content and total ash content but there are neither of ZST nor that of the CT as indicated in BIS specification specified in aforesaid paragraph. In such a circumstance, not permitting the re-test of the samples by the adjudicating authority is not correct and legal. The Central Board of Excise and Customs has published supplementary instructions under the Central Excise Act which in Chapter 8.1 to 8.4. mandates that in case of any assessee is not satisfied with the test result the same is required to be re-tested again by the CRCL. This has not been followed by the adjudicating authority in the present case. Hon ble Allahabad High Court in case of Katyal Industries vs. Union of India 2013 (8) TMI 500 - ALLAHABAD HIGH COURT held that if denial of statutory right for re-testing of the sample amounts of violation of principal of natural justice resulting into serious civil and criminal liability. Hon ble High Court has further hold that re-testing, for which samples are specifically drawn by the Department in accordance with para 8.1 to 8.4 of instructions issued under Central Excise Rules, 2004 could not be denied to the petitioner. The Commissioner (Appeal) has not passed any order on merits of the case, and therefore, the same is non speaking. Merely, saying that a separate show cause notice has been issued by the Commissioner regarding classification of goods based on the test reports, as above is not appropriate and he should have pass the order as per various ground contained in the appeal memorandum. The Commissioner (Appeal) has treated part for the order as an administrative order regarding the capacity determination which is also illegal incorrect - It was incumbent upon the Commissioner (Appeal) to decide the entire issue contested before him in appeal as per the provisions contained in Section 35 of the Act. Therefore, the order passed by the Commissioner (Appeal) in respect of these cases is not sustainable and liable to be set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Classification of goods as Chewing Tobacco (CT) or Zarda Scented Tobacco (ZST).
2. Validity of test reports and denial of re-testing.
3. Adherence to compounded levy scheme and declarations.
4. Legality of the adjudicating authority's and Commissioner (Appeal)'s orders.

Issue-wise Detailed Analysis:

1. Classification of goods as Chewing Tobacco (CT) or Zarda Scented Tobacco (ZST):
The core issue was whether the goods manufactured by the appellant were classifiable as Chewing Tobacco (CT) under Chapter Heading 24039910 or as Zarda Scented Tobacco (ZST) under Chapter Heading 2419930. The tariff does not define these products, but the Bureau of Indian Standard (BIS) provides characteristics for both. The appellant argued that their products met the BIS specifications for CT, while the Revenue contended that the products were ZST, which attracted a higher duty under the compounded levy scheme. The Tribunal found that the Department had changed its opinion on the classification based on the duty structure, and the appellant’s product should be classified based on the description provided by the manufacturer and common parlance, as supported by previous Tribunal decisions.

2. Validity of test reports and denial of re-testing:
The appellant challenged the validity of the test reports from the Central Revenue Control Laboratory (CRCL), arguing that they did not provide specific findings on the parameters required to classify the products as ZST or CT. The Tribunal noted that the test reports did not discuss all necessary chemical characteristics and that the denial of re-testing by the adjudicating authority was incorrect. The Tribunal cited the Central Board of Excise and Customs' instructions and previous court rulings, emphasizing the appellant’s right to a re-test, which was a matter of natural justice.

3. Adherence to compounded levy scheme and declarations:
The Tribunal examined the declarations filed by the appellant under the compounded levy scheme, which showed that the appellant had declared their products as either ZST or CT based on business exigencies and not merely to benefit from favorable duty rates. The Tribunal found that the Department’s contention that the appellant changed the classification to evade higher duties was not substantiated. The declarations and the compounded levy rates were scrutinized, and it was observed that the duty rates for ZST and CT had varied over time, influencing the appellant’s declarations.

4. Legality of the adjudicating authority's and Commissioner (Appeal)'s orders:
The Tribunal found that the adjudicating authority had not followed proper procedures, such as preparing test memos and permitting re-tests. The Commissioner (Appeal) had also failed to pass a speaking order on the merits of the case, merely referring to a separate show cause notice. The Tribunal held that the Commissioner (Appeal) should have addressed all issues raised in the appeal as per Section 35 of the Central Excise Act. Consequently, the Tribunal set aside the orders of both the adjudicating authority and the Commissioner (Appeal).

Conclusion:
The Tribunal allowed all the appeals filed by the appellant, granting consequential benefits. It emphasized the importance of adhering to procedural fairness, the right to re-testing, and the proper classification of goods based on established legal principles and previous rulings.