1990 (12) TMI 226 - AT - Central Excise

Summary

Issues:
Stay petition seeking waiver of pre-deposit of duty on glass fabrics impregnated with bitumen/coal tar pitch under Heading 7014.00. Applicability of exemption from duty, classification of the product under sub-heading 6807.00, reliance on H.S.N. in classification, predominant composition, comparison with similar cases, jurisdiction of Assistant Collector post remand order, estoppel against correct classification, opposition to stay.

Analysis:
The Stay Petition was filed by M/s. S.T.P. Ltd. challenging the demand of duty by the Assistant Collector of Central Excise, Calcutta. The Collector (Appeals) upheld the demand, which was remanded back to the Assistant Collector for reevaluation. The Assistant Collector, however, went beyond the remand order by applying a fresh classification based on undisclosed materials and test findings, leading to a dispute regarding the classification of the product under Heading 7014.00 or sub-heading 6807.00. The petitioner argued that the product, even impregnated with bitumen, remained glass fabric and not an article of bitumen, citing precedents and the H.S.N. classification. The contention was supported by the comparison with similar cases and the jurisdictional limitations post remand order.

The respondent, represented by the J.D.R., argued against the stay, emphasizing the correct classification based on chemical tests showing the predominance of bitumen in the product. The respondent referred to HSN Heading 68.07 to support the classification under sub-heading 6807.00, highlighting the absence of a specific provision for bitumenised glass fabric in the tariff.

Upon consideration of the arguments, the Tribunal found merit in the petitioner's contentions. The Tribunal observed that the Assistant Collector's alternative classification beyond the remand order was not appropriate. The reliance on HSN provisions for classification under sub-heading 6807.00 was deemed improper, as the entry did not align with the Central Excise Tariff. The Tribunal acknowledged the prima facie case made by the petitioner and granted the stay, directing the transfer of the appeal to a Special Bench for disposal. The applicants were instructed to execute a personal bond for the disputed amount, ensuring compliance with the stay order.

In conclusion, the judgment addressed the issues of classification, jurisdiction post remand order, reliance on precedents, and the applicability of HSN provisions in determining the classification of glass fabrics impregnated with bitumen/coal tar pitch. The decision to grant the stay and transfer the appeal to a Special Bench reflected a careful consideration of the legal arguments presented by both parties.