2008 (1) TMI 32 - AT - Central Excise

Impugned matter stands finalized by the SC in assessee favour, entitling benefit of the Not.59/90 36/94, classifying Agglomerated Marble Slabs Tiles under SH 68.07 Order of Asst. Comm. never become null but gets merged, when the same is taken in appeal before the higher appellate forum

Summary

Issues:
Classification of Agglomerated Marble Slabs & Tiles under subheading 68.07, denial of exemption under Notification No. 59/90 and No. 36/94-CE, validity of demand of duty, merging of orders by different authorities, finality of Supreme Court's decision.

Classification and Exemption Issue:
The Tribunal remanded the matter to the Commissioner after noting the duplication of demand already confirmed by the Assistant Commissioner. The Commissioner upheld the demand of duty against the appellant, but the Tribunal found that the issue of classification and eligibility for exemption under Notification No. 59/90 and No. 36/94-CE had already been decided in earlier proceedings. The Commissioner's order was set aside by the Tribunal, and the Supreme Court ruled in favor of the appellant in a related case, entitling them to the benefit of the notification. Consequently, the impugned order was set aside, and the appellant was granted relief.

Validity of Demand Issue:
The Commissioner held that the Assistant Commissioner's order confirming the duty demand became null and void after being set aside by the Tribunal. However, the Tribunal clarified that the original order does not become irrelevant or wiped out when taken in appeal. The order of the original adjudicating authority merges with the appellate authority's order, preventing the department from initiating fresh proceedings for the same period. The Commissioner's reasoning on the irrelevance of the Assistant Commissioner's order was deemed incorrect, leading to the impugned order being set aside.

Finality of Supreme Court Decision Issue:
The Tribunal acknowledged that the matter had been finalized in favor of the appellant by the Supreme Court in a related case. The Supreme Court's decision entitled the appellant to the benefit of the notification, rendering the impugned order liable to be set aside. The Tribunal observed that the Commissioner's reasoning regarding the nullity of the Assistant Commissioner's order due to subsequent proceedings before higher authorities was flawed, emphasizing that the original order remains valid even when appealed. As a result, the impugned order was overturned, and the appeal was allowed with consequential relief to the appellant.