2018 (5) TMI 15 - HC - Central Excise

Reclassification of goods - perfumes containing spirit - Held that - this is a fit case where the matter has to be remanded to the 2nd respondent for fresh consideration since not only in the case of the assessee s sister concern, their claim has been accepted, but in the assessee s own case for the subsequent clearances, the stand taken by the assessee has been accepted - petitionallowed by way of remand.

Summary

Issues:
Challenge to Order-in-Original dated 30-6-2003 reclassifying goods under Central Excise Tariff Act, 1985, Claim for refund of excise duty, Non-awaiting of decision of Commissioner of Central Excise (Appeals), Remand for fresh consideration.

Analysis:

1. Challenge to Order-in-Original: The petitioner filed a writ petition challenging the Order-in-Original dated 30-6-2003, where the goods manufactured were reclassified under Chapter Heading 96.16 of the Central Excise Tariff Act, 1985. The petitioner had paid the excise duty under the said heading, and a claim for refund was rejected. The petitioner requested adjournment of the hearing due to a pending issue with the petitioner's sister concern, but the 1st respondent passed the impugned order without awaiting the decision of the Commissioner of Central Excise (Appeals).

2. Non-awaiting of Commissioner's Decision: The Commissioner of Central Excise (Appeals) in an identical case allowed the appeal of the petitioner's sister concern and held that perfumes containing alcohol should not be classified under any chapter of the Central Excise Tariff Act, 1985. Despite this decision, the 1st respondent did not wait for the Commissioner's decision and passed the impugned order. The subsequent clearances by the petitioner were accepted for classification, indicating inconsistency in treatment.

3. Remand for Fresh Consideration: Considering the acceptance of the petitioner's stand in subsequent clearances and the decision in the petitioner's sister concern's case, the court found it appropriate to remand the matter to the 2nd respondent for fresh consideration. The court directed the 2nd respondent to take note of the orders passed by the Commissioner of Central Excise (Appeals) in both cases and issue appropriate orders for the refund of excess excise duty within three months from the date of the order.

In conclusion, the High Court allowed the writ petition, set aside the impugned order, and remanded the matter for fresh consideration, emphasizing the importance of consistency in decision-making and the need to await relevant appellate decisions before finalizing orders.