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TMI Blog1994 (11) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the classification of the subject product, as aforesaid, in the present appeals relates to the period from 1-3-1986 to 31-1-1990. In all, eight Show Cause Notices were issued by the Assistant Collector of Central Excise concerned to the appellants for the different periods and the same were adjudicated by him by eight different Orders-in Original. Against which eight separate appeals were filed before the Collector (Appeals) who disposed of the said appeals by its impugned common Order-in-Appeal, dated 15-10-1991 (issued on 21-10-1994). He further submitted that the Central Board of Excise and Customs, New Delhi, has issued a Circular No. 23/13/93, dated 20th December, 1993 under Section 37B of the Central Excises and Salt Act, 1944 inter alia observing that for the purpose of ensuring uniformity in classification the Synthetic Soft Drink Concentrate packed and marketed, as mentioned in para 2, of the circular shall be classified under sub-heading 2107.99 of the Tariff. This Circular has been issued subsequent to the passing of the impugned Order. He further submitted that since the appellants are also packing and marketing the Synthetic Soft Drink Concentrate, as mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances become inappropriate. In fact, the learned counsel submitted that, such a course (remanding of the case) has been consistently adopted by this Tribunal in such a situation in any number of the cases. To wit, Final Order No. E/ 418/93-B1 and Stay Order No.E/391/93-B1 dated 2-12-1993 passed in the case of M/s. Standard Industries v. Collector of Central Excise, Madurai, followed in the case of M/s. Centhar Vessels Ltd. v. Collector of Central Excise, Trichy, Final Order No. E/26/94-B1, dated 10-1-1994. He also took us through the said Orders to show that under very similar circumstances, the case was remanded. He also cited the case of Air Control Chemical Engg. Co. Ltd. v. Union of India, 1991 (51) E.L.T. 265 (Guj.) wherein a Division Bench of the Gujarat High Court remanded the case for deciding it in the light of the circular issued under Section 37B of the Central Excises and Salt Act, 1944 by the Central Board of Excise Customs. The case of Birla Jute and Industries Ltd. v. Assistant Collector of Central Excise, 1992 (57) E.L.T. 674 (Cal.) was also cited. The learned counsel further highlighted that in the instant case remand is also necessary since the three cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. 7. Therefore, the question that has now to be seen is, what is appropriate order that should be made in the instant case? 8. From the record we find that out of the eight cases, three cases were decided ex-parte by the Assistant Collector vide his Orders-in-Original No. 208/VC/90; 209/VC/90; and 210/VC/90 and dated 31-8-1990 after rejecting the prayer of the appellants to keep the matter pending since the issue regarding the classification of the subject product was under consideration before the C.B.E.C. This grievance was made before the Collector (Appeals) by the appellants, but he did not advert himself to this aspect at all while passing the common impugned Order-in-Appeal. In the Memorandum of Appeal (page 34), the appellants have also reiterated the said ground before us. Likewise, they have taken a ground in the memorandum of Appeal that their written submissions dated 5-10-1991 were not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, 1994 (70) E.L.T. 745- cited by the learned SDR himself]. 9. This Tribunal also adopted the same course of remand while passing Final Order No. 790 to 962/89, dated 6th December, 1989 (extracted from the said case of Hindustan Lever Ltd. v. Collector of Central Excise, Bombay, supra). Following the said judgment of the Supreme Court dated 6th April, 1990 and the Order No. 790 to 962/89-A this Tribunal reiterated the same view in the case of Hindustan Lever Ltd. v. Collector of Central Excise, Bombay, supra. For ready reference, the relevant portions are extracted as follows : - 5. We agree with contention of Shri Beri. This Tribunal in its Order No. 790-962/89 (to which one of us is a party) held as follows:- We have considered the arguments of both sides. It is true that the Board s orders are not binding on the Tribunal, but when the Board wants the Collectors to take a particular view which is advantageous to the assessees we feel that the assessees should get an opportunity for pleading for the advantage. Admittedly, the Board s circular was not considered by the adjudicating and appellate authorities in all these appeals. Therefore, following the ratio of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand of the case. For ready reference, the relevant portion may be extracted as below:- Shri V. Lakshmikumaran, learned advocate, submits that the CBEC has issued a Circular under Section 37B of the Central Excises and Salt Act, 1944 (Circular No. 4/92, dated 19-5-1992) which would give them the benefit of Notification No. 205/88-CE, dated 25-5-1988. This Circular has been issued subsequent to the impugned Order passed by the Collector. In such circumstances, he submits that the Bench may like to remand the matter to the Collector to examine the case afresh in the light of the Board s Circular, mentioned above. Such a course he submits has been adopted by the Tribunal in the case of M/s. Standard Industries v. Collector of Central Excise, Final Order No. E/418/93-B1 and Stay Order No. E/391/93-B1 dated 2-12-1993. 2. Learned JDR does not object to the aforesaid suggestion. 3. Having regard to the facts and circumstances of the case, we remand the matter to the Collector of Central Excise, Trichy, for deciding the case de novo in the light of the Board s Circular, mentioned above. 11. The same course was again adopted by this Tribunal in the case of M/s. Delhi Bottling Co. L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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