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TMI Blog2014 (11) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Dave, for the Appellant. Shri Darshan M. Parikh, for the Respondent. JUDGMENT This appeal is filed by the assessee calling in question legality and validity of judgment of the Central Excise and Customs Appellate Tribunal ( the Tribunal for short) dated 29-7-2008 [2009 (241) E.L.T. 584 (Tri.-Ahmd.)] as also a subsequent order dated 1-12-2008 [2009 (244) E.L.T. 230 (Tri.-Ahmd.)] by which the Tribunal refused to entertain an application for rectification filed by the present applicant against, its first order. In the present appeal, the appellant has suggested following substantial questions of law for our consideration : (a) Whether the action of the Appellate Tribunal in remanding the case to the original adjudicating authority for deciding the case on the basis of new grounds, new evidence and new issues which were never raised in the show cause notice and also not in the Revenue s appeal is within the competence and jurisdiction of the Tribunal? (b) Whether the action of the Appellate Tribunal in sending the case for fresh adjudication by way of an open remand for deciding issues not arising out of the show cause notice and the adjudication order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in short was the controversy between the parties. 3.2 The appellant opposed the show cause notice proceedings and produced detailed materials and literature in support of its stand that the product classification was correctly declared and, on which basis, duty liability at the rate prevailing was discharged. 3.3 The adjudicating authority considered the materials on record including the assessee s objections and literature produced by the assessee in support of such objections. Referring to the literature produced by the assessee, the Commissioner of Central Excise, in his order dated 23-8-2006, observed as under : From above literature, it is clear that the use of Flash Dryer has been mentioned in the process of manufacture of Starch and not in the process of modified starch. The above fact supports the view that flash dryers are used in drying of starch and not in the manufacture of modified starch. In view of this authentic literature, allegation based on para 7 referred in 31.1 above does not survive. The manufacturing process of the assessee is exactly similar to the one described in Ullman s Encyclopedia referred above. 3.4 The Commissioner further observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. Dr. G.P. Sharma in his answer to question No. 7 in the cross-examination stated As per IS 1184, the viscosity of the product by Redwood Viscometer No. I should be minimum 30 and which is found as per records as being more than 30 for the purpose of ascertaining it as native starch. As per IS 1184, the minimum viscosity is 40 seconds and not 30 seconds. Further knowing fully well that the chemical test was required to be done by using Redwood Viscometer No. I, the Chemical Examiner has used Redwood Viscometer No. II. The deposition is based on incorrect knowledge of the standard and the test has been conducted by using non-standard and non-prescribed equipment. The ld. Jt. CDR also pointed out that when the conversion is done by applying the ratios given by Dr. Sharma for comparison between two Viscometers, the result would be that the viscosity in respect of the three samples would come to less than 40. Further this is also supported by the test reports of the laboratory of the respondents themselves, which show that all the varieties of starches under dispute have viscosity of less than 40. Therefore, on the viscosity test alone, the products manufactured by the respondents b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. Counsel further submitted that the Tribunal in the appeal filed by the revenue could not have re-opened the issues. Counsel further submitted that the entire process of manufacturing was laid bare before the Commissioner. He had taken into account the material on record. It was further not open for the Tribunal to reopen the entire inquiry before the Commissioner since if at all, it was the department who had failed to produce relevant material before the Commissioner. 6. Counsel relied on following decisions in support of his contention that the appeal is maintainable : 1. Anil Products Limited v. Commissioner of Central Excise, Ahmedabad-II reported in 2010 (257) E.L.T. 523 (Guj.) 2. Commissioner of Central Excise, Noida v. Mil India Ltd. reported in 2008 (222) E.L.T. 497 (All.) 3. Commissioner of Central Excise Customs, Jaipur v. Reliance Chemotex Industries Ltd. reported in 2002 (146) E.L.T. 277 (Raj.). 7. On the other hand, Mr. Darshan Parikh for the department reiterated his contention that in view of the provisions contained in Section 35L of the Act, the appeal would not be maintainable. He submitted that the entire controversy before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. 11. The question, therefore is does the present appeal fall within the exclusion clause contained in sub-section (1) of Section 35G of the Act or in other words, is covered by clause (b) of Section 35L of the Act. 12. Clause (b) of Section 35L, provides for appeals to the Supreme Court against any order passed by the Appellate Tribunal where such order relates among other things to determination of any question having a relation to the rate of duty or to the value of goods for the purpose of assessment. The fact that if a particular order relates to classification of goods, same would immediately be covered within the expression a question having relation to the rate of duty is not really in dispute. The fact that the entire question before the Commissioner, whose judgment was the subject matter of the appeal before Tribunal, related to classification of goods is neither disputable nor disputed. We have noted relevant portions of the show cause notice, the order of the Commissioner and also that of the Tribunal which would demonstra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court is of no consequence. 14. In the present case, the central and in fact the sole issue before the Tribunal was with respect to classification of the goods. Such issue was decided by the Tribunal in a particular manner. It is this decision which the assessee has challenged in the present appeal. Such appeal, in our view, would not lie before this Court. The fact, that the Tribunal instead of taking a final decision on the issue, remanded the proceedings for fresh consideration before the Commissioner, in our view, would not make any difference. 15. In case of Anil Products Ltd. v. Commissioner of Central Excise, Ahmedabad-II (supra.) this Court considered the objection of the revenue to the maintainability of the appeal on the ground that the issue regarding classification was involved. Such objection was turned down by this Court observing that the main grievance of the appellant was about non-speaking or non-reasoned order passed by the Tribunal. The said decision does not lay down the ratio which can be applied in the present case. 16. In case of Commissioner of Central Excise, Noida v. Mil India Ltd. Allahabad High Court (supra.), the objection to the maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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