9911796707
TMI Blog1996 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... and setting aside the impugned order on the following pleadings. The Tribunal has remanded the order for de novo adjudication by both the Members by passing separate orders. Member (J) has held that the contention of the assessee (i) That the Motley process does not amount to manufacture and the resultant paper is not a cigarette paper has not been technically examined by the lower authorities by getting technical or trade opinion. That the assessee has also not produced any evidence of technical or trade opinion before the lower authorities, they had also not produced any Trade and Commercial usage opinion before the Tribunal, for appreciating their pleas. That the technical and dictionary definitions, without any Technical and Trade opinion would only be a delusive guide and it cannot be sufficient to decide the matter in one way or the other. The Department has to send the samples of the product after `Motley’ process for technical and trade opinion and counter the same to the assessee for a reply. Only thereafter, the matter can be adjudicated keeping in view the HSN Explanatory Notes, which indeed is a persuasive value. If the trade recognises the product as a different one af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into surface decorated printed paper would still attract 48.11 and not 48.13 at this stage (as the former explicitly covers such products in rolls or sheets). “10. Hence, even if HSN notes are taken into account and on that basis tipping paper was considered as a type of cigarette paper still the show cause notice would be addressable to the initial manufacturer of the item and not to the one who has merely subjected the base tipping paper to a further process of conversion as aforesaid. To my mind therefore the proceedings have been started against a wrong party and deserve to be quashed. 11. This would however, revive the provisional character of the assessment leaving the department free to finalise the assessment after taking only the correct and relevant factors (including relevant notification) into consideration and excluding the aspects which are not relevant or have no direct bearing in so far as the appellants are concerned". 3. Pointing out to these two separate orders, ld. Advocate Shri K. Prakash Anand submitted that the Member (J) is not correct in holding that no technical literature and evidence of Trade understanding was not produced, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, when he has upheld Collector (Appeals)’s order of remand and has also widened the scope of remand for de novo proceedings. That Member (J) had rightly observed that the technical literature and Trade Understanding evidence had not been placed at the first instance at the lower level and that it had not been examined by them. The Trade Understanding evidence is still not available in file. What had been placed was a few gate passes of another assessees, which is not evidence of trade understanding? Therefore, ld. JDR submitted that there is no mistake in the order of Member (J) for rectification. He also submitted that as there is no difference of opinion between the two orders, hence question of reference to third member does not arise. The observations of Hon’ble Vice President are merely recommendatory and ultimately he has also directed for de novo proceedings. The Asstt. Collector has to take into consideration both the findings and still uphold the opinion of Hon’ble Vice President, and the appellant can canvass the same. He submitted that in any event no mistake arises for rectification. 5. We have carefully considered the submissions made by both the sides and per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e substance in the submissions of the learned Advocate that the final order is a concurring order only in so far as the conclusion to remand the matter is concerned. The two orders of the Member (J) and Vice President are otherwise differing in their route, contents, the reasoning and observations as also the directions to the lower authorities. 9. It would, therefore, be in my opinion, more appropriate to treat it as a difference of opinion case and forward it to the President for reference to a Third Member. The ROM is disposed in the above terms. Sd/- (S.K. Bhatnagar) Vice President DIFFERENCE OF OPINION 10. In view of the difference of opinion between Hon’ble Member Judicial and the Vice President, the matter is submitted to the Hon’ble President for reference to a Third Member on the following point :- Whether in the facts and circumstances of the case, the matter was required to be remanded for de novo adjudication keeping in view the observations, findings and directions of Hon’ble Member (Judicial) or the Vice President? Sd/- Sd/- (S.L. Peeran) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber (Judicial) remand direction. 13. In regard to merits he submitted that they had already placed before the Tribunal the evidence and actual practice in regard to these goods which indicated that both in accordance with commercial understanding and the Departmental practice over long years right upto the 1944 this paper has been assessed in major manufacturing units under chapter sub-heading [4813.00]. No further purpose would be served in remanding the case in the light of the directions of Member (J). In fact ld. Vice President correctly decided the basic issues and held that the processes carried out by them do not amount to manufacture and in fact suggested that proceedings be initiated against third party who supplied the paper. Having decided the basic issue there was nothing left for remand so far as they are concerned. 14. Ld. DR submitted that whether rectification of mistake application filed by the Applicant has been properly dealt with cannot be gone into by the Bench dealing with the difference of opinion on this ROM. If the appellants felt the ROM had not been properly dealt with they should have filed another ROM application. ld. Vice President agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter Motley process for technical and trade opinion and “countered the same to the assessee for a reply.” The matter can only thereafter be adjudicated keeping in view HSN explanatory note which has a persuasive value. He also held that if the trade recognises the product as a different one after Motley process, and the identity of cork-tipping has been lost after the process, then indeed a process of manufacture has occurred. This has to be examined in the light of the above and ruling of the technical specification in case of Laminated Packing case. These therefore were definite directions in the light of which the officer to whom the matter was remanded was to decide the case. 17. Ld. Vice President, on the other hand, expressed the view that the process undertaken by the appellants constitutes merely conversion of plain tipping paper into Motley tipped filter cigarette. He held that even if it was considered that tipping paper was also considered a type of cigarette paper because of this alternative description as cigarette mouth paper and its use even then its convertion into surface printing paper would still attract Tariff Item No. 48.11 and not 48.13. He observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precise term for the officer to whom matter is remanded is bound to act within the frame work of these direction. 21. Since ld. Vice President while expressing opinion about the basic issue has yet remanded the matter for re-examination without clearly spelling out the direction with reference to which the officer has to adjudicate the case, I am of the view that the matter was required to be re-examined/remanded for de novo decision keeping in view the observations and findings of ld. Member (J). 22. In the result, the point of difference is answered as under : 23. In the facts and circumstances of the case, the matter was required to be remanded for denovo adjudication keeping in view the observations, findings, and directions of ld. Member (J). Sd/- (Shiben K. Dhar) Member (J) FINAL ORDER 24. In view of the majority opinion, the matter is required to be remanded for de novo adjudication keeping in view the observations, findings and directions of learned Member (J). Dated : 22-8-1996 New Delhi Sd/- (S.L. Peeran) Member (J) Sd/- (S.K. Bhatnagar) V ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
