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TMI Blog2010 (9) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... m PET crap and PET waste bottles. Hon ble Tribunal in case of CCE, Kanpur v. G.P.L. Polyfilms Ltd. as reported in 2005 (183) E.L.T. 27 (Tri-Del.) held that the Polyester Staple Fibre (PSF) manufactured from PET scrap and PET waste bottles, is not dutiable. Accordingly, the appellant surrendered the Central Excise Registration. Thereafter, C.B.E. C. issued Circular 929/19/2010-CX., dated 29-6-2010 under Section 37B of the Central Excise Act, 1944 clarifying that the Polyester Staple Fibre (PSF) manufactured from PET scrap and PET waste bottles is classifiable under Heading 5503 20 00 of Central Excise Tariff Act, 1985. After issue of the said Circular, the Central Excise Officer visited the factory of the appellant on 4-8-2010 and seized t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 issued by CBEC, they have filed Writ Petition before Hon ble Delhi High Court which has been admitted by the Hon ble High Court and hence the matter is sub judice admitted. As the Writ Petition has been admitted by the Hon ble High Court, they are unable to determine the excisability of the goods as well as rate of duty on the said goods. Therefore, the provisions of Rule 7 of Central Excise Rules, 2002 are applicable to allow provisional assessment. The appellant has contended that non-granting of provisional assessment amounts to contempt of the order dated 13-8-2010 of Hon ble Delhi High Court. It has also been contended that the Circular issued by the Board is binding on the Departmental officers but the same is not biding on them an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l hearing. I find that Hon ble Tribunal in case of CCE, Kanpur v. G.P.L. Polyfilms Ltd. as reported in 2005 (183) E.L.T. 27 (Tri.-Del.) has held that the Polyster Staple Fibre (PSF) manufactured from PET scrap and PET waste bottles is not dutiable. Accordingly, the appellant surrendered the Central Excise Registration. The Department did not file any appeal against the aforesaid order of Hon ble Tribunal. Therefore, the said order of Hon ble Tribunal has attained finality. In the cases of Jayaswal Neco Ltd. v. CCE, Nagpur [2006 (195) E.L.T. 142 (S.C.) = 2007 (8) S.T.R. 305 (S.C.)] and CCE, Kanpur v. Matador Foam [2005 (179) E.L.T. 257 (S.C.)], Hon ble Supreme Court held that if an order is not appealed against, Deptt. cannot take different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gible for at least the facility of provisional assessment. I also find that after the decision of Hon ble Tribunal, the Jurisdictional Central Excise Authorities did not object to surrender of Central Excise Registration by the appellant and also did not raise any demand for non-payment of duty. It is thus evident that the Jurisdictional Central Excise Officers accepted said decision of Hon ble Tribunal and the appellant was availing benefit of the said decision of Hon ble Tribunal and was not paying duty under the bona fide belief that the goods manufactured by them are not dutiable. 4.3 CBEC issued Circular from F. No. 929/19/2010-CX dated 29-6-2010 under Section 37B of the Central Excise Act, 1944 clarifying that the Polyester Staple F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Delhi High Court and the aforesaid order on the Stay Application, should have allowed the provisional assessment under Rule 7 Central Excise Rules, 2002. I, considering the order dated 13th August, 2010 of the Hon ble High Court direct the Assistant Commissioner to allow provisional assessment of the goods till disposal of the Writ Petition by Hon ble Delhi High Court. 4.5 The contention of the appellant that the Circular issued by the Department are binding on the Departmental Authorities but same are not binding on the appellant, is acceptable. The Departmental Authorities shall follow the Circulars but the assessees cannot be forced to follow the Circulars if they have challenged the matter before Judicial Forums. The appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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