2004 (2) TMI 59 - AT - Central Excise

Letter in question, an order for classification in manner directed determines and declares rights and imposes an overall fiscal liability on assessee thus an order on classification arrived at after enquiries albeit incomplete - Such direction cannot be mere communication of a private opinion or advise by proper officer - opportunity to proper officers to remain present and obtain material collected during enquiries/investigation should be provided - Matter remitted to to redecide the appeal

Summary

Issues:
1. Whether the letter dated 4-9-2001 constitutes an order under Section 35A?
2. Whether the order passed by CCE (Appeals) is valid?
3. Whether the matter should be remanded back to CCE (Appeals) for re-decision on merits?

Analysis:
1. The Revenue contended that the letter dated 4-9-2001 was not an order under Section 35A but a 'communication letter' not subject to appeal. The Advocate argued that the letter directed a classification impacting rights and liabilities, making it an order. The Tribunal found that the letter directed a specific classification, even during ongoing investigations, satisfying the tests laid down by the Supreme Court. No fresh grounds were filed to ascertain the completion of the enquiry, leading to the conclusion that the letter constituted an order on classification.

2. The Tribunal determined that the letter dated 4-9-2001 was an order on classification, even though the enquiries were incomplete. The order imposed fiscal liability on the assessee and could not be considered a mere communication. The Tribunal held that the order could be taken cognizance by the Commissioner (Appeals) under Section 35A, considering the implications of the classification direction.

3. The Tribunal found fault with the order passed by CCE (Appeals) as it was based solely on the submissions of the appellant, with the Revenue remaining unrepresented. The Tribunal concluded that the order on merits should have been passed after allowing the proper officer to present the department's case and considering the material collected during the investigations. As CCE (Appeals) was not empowered to remand the matter at the time, the issue was remanded back to CCE (Appeals) for re-decision on the grounds taken by the assessee.

4. The Tribunal rejected the plea for the lower adjudicating authority to decide the matter, as the proper officer had already directed a specific classification. It was deemed in the interest of justice for CCE (Appeals) to determine the classification issues after considering the completed enquiry results and hearing both sides. Consequently, the appeal was allowed for remand to CCE (Appeals) for further consideration and finalization of the classification of the impugned product.