1999 (8) TMI 266 - AT - Central Excise

Summary

Issues:
Classification of the product Milkafe under the Central Excise Tariff sub-headings, Opportunity for the assessee to present their case before the appellate authority, Correctness of the classification determined by the adjudicating authority.

Classification of the product Milkafe:
The appeals involved a dispute regarding the classification of the product Milkafe, a preparation of Milk, Coffee, and sugar. The Collector of Central Excise (Appeals) had initially classified the product under sub-heading No. 2107.91 of the Central Excise Tariff. However, in de novo proceedings, the product was classified under sub-heading No. 2101.10 by the adjudicating authority. The assessee claimed classification under sub-heading No. 0404.00 of the Tariff. The Revenue themselves discarded the classification under sub-heading No. 2107.91 in the de novo proceedings. The Collector of Central Excise (Appeals) set aside the Order-in-Original and determined the classification under sub-heading No. 2107.91, which was challenged by the assessee.

Opportunity for the assessee to present their case:
The assessee raised a grievance that they were not given an opportunity to make submissions or contentions against the approval under Heading No. 2107.91, as it was not mentioned in the show cause notice or the Order-in-Original. The appellate authority settled the classification without offering the assessee a chance to present their case under sub-heading No. 2107.91. The absence of opportunity for the assessee to address this classification was deemed unfair and a violation of natural justice.

Correctness of the classification determined by the adjudicating authority:
The Revenue argued that the classification under sub-heading No. 2101.10 by the adjudicating authority was correct, while the assessee contended for classification under sub-heading No. 0404.00. The Revenue acknowledged that the assessee was not given an opportunity to address the classification under sub-heading No. 2107.91. Consequently, it was agreed that the matter could be remanded to the jurisdictional Commissioner of Central Excise (Appeals) for a fair hearing and a speaking appealable order as per law.

In conclusion, the Appellate Tribunal found that the classification under sub-heading No. 2107.91 had been determined without offering an opportunity to the assessee to present their case. Therefore, the impugned Order-in-Appeal was set aside, and both appeals were remanded to the jurisdictional Commissioner of Central Excise (Appeals) to provide both parties with an opportunity to present their case before passing a speaking appealable order in accordance with the law. The appeals were allowed by way of remand.