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TMI Blog1998 (8) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... he process of coating for purposes of chemical examination. The officers also visited the registered office of the assessee at Secunderabad and obtained from them photocopies of invoices wherein the description of swastik book binding cloth is given. Visits were also made to the other premises of the customers in the city of Hyderabad and further enquiries were conducted with other customers. The customers confirmed purchasing book binding cloth from the assessee and that they are using the cloth in their units or selling the cloth to others for use in the making of note books, registers and files etc. After due investigation and recording of statements the department issued show cause notice seeking reclassification of the item under Chapter Heading 59.01 and alleged that the assessees wrongly classified the goods under Headings 5206.61 and 5206.32 describing the book binding cloth manufactured by them as processed cloth. Details of the figures were collected for March, 1986 to July, 1987 and the differential duty of Rs. 10,87,331.57 was demanded from the respondents. It was therefore, the case of the department that the item is not processed cloth but book binding cloth. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r coated with plastic material the impugned goods will not be classifiable either under Heading 59.01 or under 59.03. Accordingly, I hold that such cotton fabrics subjected to the process of dyeing or any or more than two processes would be classifiable under 52.06 and not under 59.01". 4. The Central Board has reviewed this order of the Collector dated 22-12-1988 under their communication dated 20-12-1989. There is no signature of the Member of the Board. But the order merely indicates Sd/- . It has been attested by Senior Technical Officer. The Tribunal had directed the Revenue to produce the case records to verify the facts as to whether the Order No. 59R dated 20-12-1989 had been signed by the Member of the Central Board of Excise and Customs, as preliminary objection had been raised that the same has not been signed and in terms of the judgment rendered in the case of CCE v. M.M. Rubber Co. reported in 1991 (55) E.L.T. 289 (S.C.), it has been laid down that one year from the date of decision or order to run from the date of signing of the decision or order by the concerned authority. It has also been held that if the authority is authorised to exercise the power or to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor and the Board right under Section 35E to the exercise of the right of appeal by an aggrieved assessee from an order passed to its prejudice. The power under Section 35E is a power of superintendence conferred on a superior authority to ensure that the subordinate officers exercise this powers under the Act correctly and properly. Where a time is limited for the purpose of the statute, such power as under Section 33A(2) of the Income Tax Act, 1922 referred to in Muthia Chettiar, should be exercised within the specified period from the date of order sought to be reconsidered. The Supreme Court observed that the period of one year fixed under sub-section (3) of Section 35E of the Act should be given its literal meaning and so construed the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore ineffective. Before the Hon ble Supreme Court the order-in-original dated 34/84 dated 28-11-1984 was contested by the Supdt. on 21-12-1984. The Board after consideration of the order issued on 11-12-1985 directed the Collector under the provisions of Section 35E(1) to apply to CEGAT for correct determination of the points arising out of the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein also same view has been taken and this order also relies upon the judgment of the Hon ble Supreme Court (supra). The contention of the learned Counsel for the respondents is that simply mentioning Sd/- does not make it an order. He also in this regard relied upon the judgment rendered in the case of CCE v. United Polymers reported in 1996 (87) E.L.T. 493 (Tribunal) wherein in para 6 the Tribunal has held as under : 6. We note that Collector of Central Excise has not put any date below his signature in the impugned order. There is, however, a remark Attested signed by R.P. Karyakarte, Superintendent (Adj.), Central Excise Customs Hdqrs., Pune dated 14-3-1988 at the bottom. There is also endorsement at the bottom More/10388/ which the ld. Advocate submits is the date the order was stencilled. We note that CBEC s order for review is dated 15-3-1989 and this Review Order is signed by Member, CBEC on 15-3-1989 itself. Since impugned order was attested on 14-3-1988 we have necessarily to presume that it was signed on that date, or any date prior to that date, since the Department has not put in any evidence in rebuttal in spite of series of opportunities given to them prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20-12-1988 is beyond the period of one year. We are not able to accept this contention, because we notice from the order itself that the same was attested on 26-12-1988 and hence the date of the order-in-original is dated 22-12-1988 even though the Collector has not put the date below his signature. The other ground urged by the respondents is that the Board s order has not been signed and merely putting Sd/- does not make it an order in the eye of law. The Bench had directed the Revenue to produce the case records to see whether there was order number or the despatch number of the Board. The case records have not been produced nor the signed order of the Member of the Board has been produced. Therefore, we have to hold that order No. 59-R, dated 20-12-1989 of the Board has not been signed, but only attested by the Senior Technical Officer by writing Sd/- dated 20-12-1989 end hence it cannot be construed to be an order as per Section 35E(1) of the C.E. Act, 1944. The assessee succeeds on this preliminary point itself and hence on this ground the appeal of the Revenue is rejected. 6. However, we also take into consideration the other points raised by the learned Counsel. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) 1990 (47) E.L.T. 449 (CEGAT) Indian Oxygen case. (d) 1991 (51) E.L.T. A36 Supreme Court upholding the CEGAT s Indian Oygen case. His contention is that in such cases, the order have to take only have prospective effect and cannot upset the clearances made on approved classification list and closed and completed assessments. He also relied upon the judgment of the Hon ble Supreme Court in the case of Rathi Alloys and Steel v. C.C.E., reported in 1990 (47) E.L.T. 205 in support of his contention. There is substance in his plea and in view of the judgment of the Hon ble Supreme Court, we uphold the contentions raised by the learned Counsel for the respondent. 8. The other points raised by the learned Counsel is that the issue is covered by the judgment of the Tribunal in the case of Sunita Textiles reported in 1993 (67) E.L.T. 932. It has been held that cotton fabrics heavily sized but not having permanent stiffness is not treatable as similar to Buckram is classifiable under Chapter 52 and not under Chapter 59. He also relied upon another judgment in the case of Susma Textiles reported in 1998 (99) E.L.T. 158 (Tribunal) = 1998 (75) ECR 20. In both these judgments, the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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