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TMI Blog2003 (10) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... em. 2. Shri B.L. Narasimhan, learned Advocate, submitted that the appellants manufacture gulabjal under the patent name gulabari , which is classified by them as a patent ayurvedic medicament under Heading 3003.30 of the Schedule to the Central Excise Act; that a show cause notice dated 19-9-97 was issued to classify the product under sub-heading 3303.00 on the ground that the product is toilet water ; that Assistant Commissioner, under Order-in-Original No. 100/97, dated 11-12-97, classified the impugned product under heading 33.03 and confirmed the demand of Rs. 1,14,78,517.00, which was deposited by them under protest; that their appeal was rejected on merit by the Commissioner (Appeals), but remanded for quantification of the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on required was provided by them under their letter dated 15-6-2001; that the Deputy Commissioner redetermined the classification of the impugned product under Heading 33.03 under Order-in-Original No. 83/2001, dated 27-12-2001, which has also been confirmed by the Commissioner (Appeals) under the impugned Order-in-Appeal Nos. 148-49/2003, dated 31-3-2003. He also mentioned that since the period October, 1997 to 18-12-97 was not covered by the order passed by adjudicating authority, the Assistant Commissioner passed a Memorandum Order No. 54/98, dated 2-4-98 confirming the demand of duty for the said period. The said order was reviewed by the Commissioner (Appeals) under Sec. 35E of the Central Excise Act on the ground that the assessable v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any appeal before the Hon ble Supreme Court challenging the decision of the Tribunal; that the classification under heading 33.03 is incorrect (sic); that it has not been given the liberty to decide the classification once again under heading 33.03. He relied upon the decision in the case of TELCO v. C.C.E., Patna, 2001 (132) E.L.T. 112 (T), wherein it has been held by the Tribunal that once the Collector (Appeals) has found show cause notice and letter of demand without jurisdiction and set aside the both, nothing survives for the Collector to adjudicate the matter on the basis of such show cause notice and letter of demand. As rightly emphasised by the ld. Consultant, no appeal had been filed by the department against both the Orders- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of both the sides. 7. It has not been disputed by the revenue that the determination of classification of the impugned product gulabari and the confirmation of the demand has been made for the period which was in dispute before the Tribunal in the first round of proceedings which stands finally decided by the Tribunal vide Final Order No. 47/2000-C, dated 14-1-2000 [2000 (126) E.L.T. 1195 (T)]; that the said final order reveals that the issue involved therein was whether gulabjal manufactured by them and marketed under patent name gulabari is classifiable under heading 33.03 of the Tariff. After hearing the arguments from both the sides, the tribunal decided the matter finally as under : We have considered the submissions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the impugned product is not classifiable under heading 33.03 of the Tariff as the Department had not discharged its burden to prove that the product, in question, is classifiable under heading 33.03. The Tribunal, therefore, set aside the demand of the Central Excise duty. As the Tribunal in the said matter did not decide the heading under which the product, in question, would be classifiable and to avoid any future controversy, observed that while holding that the product is not classifiable under heading No. 33.03, it does not mean that the Tribunal is confirming the classification of the impugned product under sub-heading 3003.30 of the Tariff as ayurvedic medicine and it was open to the Department to arrive at correct classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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