1990 (12) TMI 225 - AT - Central Excise

Summary

Issues Involved:
1. Whether the earlier judgment of the Tribunal in the case of the appellants themselves reported in 1988 (37) E.L.T. 155 is not binding and can be reopened.
2. If the answer to (1) above is in the affirmative, should the matter be remanded to the Collector for de novo adjudication in the facts and circumstances of this case and the new material brought on record.
3. If the answer to issue No. (2) above is in the negative, whether the classification of the product under consideration under Tariff Item 14AA(1) is correct.
4. Whether the show cause notice dated 20-5-1987 for demand of duty is time-barred in view of the provisions of Section 11-A of the Act.
5. Whether penalty be imposed in the facts and circumstances.

Summary:

Issue No. 1: Binding Nature of Earlier Judgment
The appellant argued that there is no res judicata in fiscal matters, citing several Supreme Court judgments. The Tribunal agreed, noting that fresh material had been brought on record, including technical literature and expert affidavits. Therefore, the earlier decision in 1988 (37) E.L.T. 155 does not operate as res judicata in the present matter.

Issue No. 2: Remand for De Novo Adjudication
The Tribunal found that the additional material brought on record, such as expert affidavits and technical literature, did not warrant further investigation or enquiry at the original stage. The Tribunal decided not to remand the case to the adjudicating authority.

Issue No. 3: Classification Under Tariff Item 14AA(1)
The Tribunal held that the impugned product, a mixture of chemicals containing Sodium Bicarbonate, is not marketable as Sodium Bicarbonate. The product is not known in the market as Sodium Bicarbonate and is not capable of being sold as such. Therefore, it cannot be classified under Tariff Item 14AA(1) and is not liable to duty.

Issue No. 4: Time-Barred Demand
The Tribunal found that the show cause notice issued on 20-5-1987 for the period July 1984 to November 1985 was time-barred. The appellant had provided all necessary information promptly, and there was no wilful mis-statement or suppression of facts. Therefore, the demand of duty is barred by limitation.

Issue No. 5: Imposition of Penalty
Given the findings on the other issues, the Tribunal concluded that no penalty is imposable and set aside the penalty.

Conclusion:
The appeal is allowed, and the earlier decision of the Tribunal is not binding due to the fresh material and clearer legal enunciations. The demand of duty is time-barred, and no penalty is imposed.