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TMI Blog1997 (10) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be subsequently classified under Tariff Heading 8108, 8109 and 8103 (sic). 2. The learned Advocate for the appellants has pleaded that without any change in facts or in law or coming to light of any new facts, the authorities have proceeded to revise the classification and this could not be done as held by the Hon ble Andhra Pradesh High Court in the case of Reckitt Colman reported in 1994 (72) E.L.T. 263. He has pleaded that the Hon ble High Court in Para 19 has held as under :- 19. The second issue in this case relates to the jurisdiction of the respondents to re-classify the goods. In order to understand the powers of the authorities, we have to consider the scheme of the Act and the Rules. Section 3 is the charging section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the information contained in the return filed by the assessee, (shall) assess the duty due on the goods removed and complete the assessment memorandum on the return, and send a copy of the same to the assessee. He can make certain adjustments and determine the net shortfall in the duty payable. Section 11A provides that when any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, call upon the assessee for making good the shortfall. However, in case there is a fraud or misrepresentation, the time limit will be five years instead of six months. The relevant date is defined as the date of monthly return in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation remained the same, the proper officer could not, on a mere change of opinion, re-classify the goods even if he had the power to invoke Section 11A or could exercise the power of assessment under Rule 173-I. This very issue came up for consideration in the Delhi High Court in J.K Synthetics Ltd. Another v. Union of India Others - 1981 (8) E.L.T. 328 (Del.). After referring to several decisions under the Income Tax Act with regard to the principle of res judicata and estoppel, the Delhi High Court came to the conclusion that for the rule of non-applicability of the principles of res judicata and estoppel, there must be imported a limitation that while the earlier decision is not conclusive or immutable, it can be brushed aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same time, it cannot be disputed that the earlier decision even if it is not to be taken as conclusive was a relevant fact and cannot be ignored. As pointed out earlier, the question of classification is a question of fact. That finding of fact is vitiated, only if it has taken into account irrelevant material or has ignored a relevant material or is contrary to any legal provision. In the present case, a fresh finding re-classifying the goods will be clearly vitiated, for it ignored the earlier decision which is a relevant fact. The contention of the Revenue that the earlier decision was a routine approval without application of mind cannot be countenanced in view of Section 114, illustration (c) of the Indian Evidence Act under which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or there had been any change in law or any suppression of facts on the part of the appellant. He has pleaded, in view of the judgment of the Hon ble Andhra Pradesh High Court, the authorities could not have proceeded to revise the classification. On the merits of the classification, he has no specific plea to make. He has further urged that the articles are composite articles and titanium content is only of 60% and above and, therefore, this could not be assessed as titanium anode. He has in this connection referred us to the show cause notice also. 4. The learned JDR has pleaded that when the matter was argued before the Hon ble Andhra Pradesh High Court, the judgment of the Hon ble Supreme Court in the case of Ballarpur Industries rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Glossary, which has a different purpose, cannot, in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expression similar laminated wood in the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention. 7. The HSN Notes, therefore, are relevant consideration and this in view of the law enunciated by the Hon ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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