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TMI Blog2006 (9) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... ey filed declaration No. II/07/98-99 (Range S.No. 155/20/98-99) seeking classification of their product Jelly-Belly under heading 2001.10 @ 8% ad valorem w.e.f. 28-2-99. Subsequently, another declaration No. 51/20/99-2000 was submitted on 28-6-99 claiming classification of the same product under heading 1704.90 again chargeable to duty @ 8% ad valorem. 2. A SCN was issued contending that the correct classification of Jelly-Belly would be under 2001.10 and the change of classification as claimed under the letter dt. 28-6-99 was not acceptable. After considering the assessee s reply, Jurisdictional Dy. Commissioner of Central Excise, Division Gwalior passed order No. 120/CEX/DEM/DC/2000 dt. 6-3-2000 adjudicating the dispute and passed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication order 98-99 dt. 30-11-05. The Commissioner upheld the contentions that correct classification of Jelly Belly was under heading 2001.10 and that there was short levy as alleged. The order therefore, demanded payment of duty as well as interest from the appellant. The Commissioner dropped the proposal for imposition of penalty. The present appeals are directed against that order of adjudication. 6. Heard both sides and perused the records. 7. The submission of the Ld. Counsel for the appellants is that the classification claim of the appellant was under heading 1704 and that claim was rejected by the Dy. Commissioner, the payment of duty was in terms of the adjudication order and there was no short payment by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated, an order was passed and the same had become final for want of any appeal, the matter remains, settled between parties and Section 11A has no application. The submission of the Ld. Counsel is that revenue authorities are dilly-dallying on the issue of classification and passing conflicting orders only for the purpose of imposing levy at the higher of the prevailing rates on the appellant. The contention is that orders are being passed not based on the merits of the issue of classification; but merely to impose the higher rate and this is not permissible in terms of the judgment of the Apex Court in the case of Jayaswal Neco Ltd. (supra). 9. We have perused the records and considered the submissions raised by both sides. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt levied or short paid, whether such non levy or non-payment, short levy or short payment as the case may be was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods, the demand can be made within one year. For the sake of convenience, Section 11A reproduced below: SECTION 11A - Recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant would appear to be right in their submission that revenue authorities are merely picking and choosing the classification that offers the higher of the rates of duty. This is not permissible in the light of the rule contained in the judgment of the Hon ble Supreme Court in the case of Jayaswals Neco Ltd. (supra). In regard to the binding nature of an earlier order not appealed against, the Hon ble Supreme Court ruled as under : 7. Since the point involved in the present case is identical to the point decided in the Hindustan Gas Industries case (supra) and the department having accepted the principle laid therein to the effect that the inserts did not require any precision machining or that any such machining was done by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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