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TMI Blog1994 (11) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal, Id. JDR who appeared on behalf of the respondent has no objection for restoration of the stay application. 2. We have heard both sides and have gone through the facts and circumstances of the case. The applicants had applied for adjournment vide application dated 20th July, 1994. We have perused the application which was received in the Registry on 20th July, 1994. There is no negligence on the part of the applicants. We are satisfied that the applicants were [prevented] for sufficient cause for non-appearance. Accordingly, we restore the stay application to its original number. STAY APPEAL 3. The appellants have filed an appeal being aggrieved from the order passed by the Collector of Central Excise, Chandigarh. The said appeal was presented in the Registry on the 27th day of May, 1994. A stay application was also filed. Mrs. Archana Wadhwa, ld. advocate appeared on behalf of the appellants. She pleaded for dispensation of the duty amount of Rs. 1,87,791.25 and penalty of Rs. 40,000/-. She pleaded that the Collector had discussed in his order of the present demand pertains to the period 1-10-1986 to 31-3-1987 and the classification list No. 148/86 is effective from 2- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Lal, ld. JDR who has appeared on behalf of the respondent pleaded that since the appellants did not supply chemical composition and as such the Collector did not feel it necessary to grant cross-examination. However, in view of the various judicial pronouncements on the issue of cross-examination he does not object to the remand of the matter if the Bench please to dispense with the pre-deposit. 5. We have heard both sides and have gone through the facts and circumstances of the case. From the arguments of the ld. advocate Mrs. Archana Wadhwa it is clear that the present impugned order pertains to the period 1-10-1986 to 31-3-1987 and thereafter two adjudication orders passed by the Assistant Collector which appear from pages 30 to 35 of the paper-book, order-in-original No. 3/AC/VAL/92, dated 24-7-1990 for the period 11-7-1989 to 19-10-1991 and thereafter the order-in-original dated 25-2-1994 at pages 23 to 27, Order No. 6-CE/AC/D/92, dated 11-6-1992 for the period October, 1989 to March, 1990. When the matter was taken by the Collector, a plea was taken for the disposal of the earlier classification pending for the earlier period and the matters remanded by the Collector (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemist, Central Revenues Control Laboratory, New Delhi on retest of the samples. Therefore, I do not find it a fit case where the cross-examination of the Chemical Examiner could be allowed. For the aforesaid reason I reject the request of the learned Counsel for the Noticees wherein he has requested for the cross-examination of the Chemical Examiner and/of the Chief Chemist. 23. Coming to the classification of the products in question observe that Chapter Note No. 2 of Chapter 30 of the said Schedule reads as under :- 2. For the purposes of Heading No. 30.03 : (i) `Medicaments means goods (other than foods or beverages such as dietetic, diabetic or fortified foods, tonic beverages) not falling within Heading No. 30.02 or 30.04 which are either :- (a) products comprising two or more constituents which have been mixed or compounded together for therapeutic or prophylactic uses; or (b) unmixed products suitable for such uses put up in measured dose or in packings for retail sale or for use in hospitals." 24. As per the Chemical analysis reports extracted supra the products in question are mainly composed of sugar with some amount of spices and salts or minty flavours. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents and the impact of it on the matter in issue. The above judgement was followed by the Tribunal in the case of Collector of C. Excise, Chandigarh v. Chandra Industries, reported in 1994 (71) E.L.T. 582 (Tri.). 6. In view of the above observations we are of the view that there was a denial of principles of natural justice. Accordingly, in view of the decision of the Delhi High Court in the case of Uptron Powertronics v. Collector of Central Excise, Meerut, reported in 1987 (28) E.L.T. 61 (Delhi) we are of the view that if the appellants are desired to deposit the duty amount of Rs. 1,87,791.25 and penalty of Rs. 40,000/- it will amount to undue hardship. Hence, we dispense with the pre-deposit of the same. 7. During the course of arguments Mrs. Archana Wadhwa, ld. advocate had made a prayer for the disposal of the appeal and remand of the same to which Shri Mohan Lal, JDR does not object. Accordingly, we proceed to dipose of the same. We have already given detailed observations that there was a denial of principles of natural justice. Accordingly, we set aside the impugned order and remand the matter to the Collector, Central Excise having jurisdiction to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reject the application for want of prosecution and direct the appellants to deposit the disputed amount within eight weeks from the date of the receipt of this order or to show cause as to why their present appeal be not dismissed for failure to deposit the disputed amount in terms of Section 35F of the Central Excises Salt Act, 1944." In these premises, the order of the subsequent Bench comprising of Shri Harish Chander, President, CEGAT and Shri P.K. Kapoor, Member (Technical) while restoring the stay application seems to creates a wrong impression as if the adjournment application in question, though received by the Registry, yet was not put up before the concerned Bench. Even otherwise the subsequent Bench has no jurisdiction or power to review or revise an order passed by the earlier Bench as held by the CEGAT itself in a series of cases - 1991 (53) E.L.T. 118; 1986 (24) E.L.T 49; 1992 (57) E.L.T. 614. Therefore, the subsequent Bench while restoring the stay application had exceeded its jurisdiction by reviewing an order passed by the earlier Bench. The matter needs re-consideration in the light of the above factual and legal position. - - TaxTMI - TMITax - Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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