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TMI Blog2015 (7) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner by filling in Annexure 1 effective from 25th July, 1991 under Rule 173B of the Central Excise Rules, 1944, had, inter alia, given the description of three items manufactured by it being Field Switch, Transwitch Unit and Stator Rotor Panel. The petitioner had given the description of such goods to have classification under tariff items 85.35 and 83.37 in the first schedule to the Central Excise Tariff Act, 1985. The said tariff items read as follows: "85.35 8535.00 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses, lightning arresters, voltage limiters, surge suppressors, plugs, junction boxes), for a voltage exceeding 1,000 vol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im and if the superior Court can in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal e.g., by furnishing security required by the statute, should it then be laid down as an inflexible rule of law that the superior Court must deny the writ when an inferior Court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior Court or tribunal on appeal or revision ?" "11. On the authorities referred to above it appears to us that there may conceivably be cases - and the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power to do so and may and should exercise it. We say no more than that." He submitted the goods were correctly classified and on queries subsequently made by the revenue, the same answered and therefore it could not be said that there has been wilful mis-statement or suppression of facts. Mr. Bharadwaj, learned advocate appearing on behalf of the revenue relied on the case of 'Raja Mechanical Co. (P) Ltd. vs. Commissioner of Central Excise, Delhi-I' reported in 2012 (279) E.L.T. 481 (S.C.) to submit that there was no merger of the order of the Tribunal with the Appellate order since the order in appeal was made on the point of limitation. He then relied on the cases of 'Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur': ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght hundred and sixty three) only." With regard to the adjudication order Mr. Bharadwaj submitted that suppression had been established as had been held therein: "The fact that the basic function of the items viz. Transwitch, Field Switch and starter rotor panel are as electrical transformer and current transformer has not been disclosed in the classification list submitted by the assessee which resulted in improper classification and short levy of C. Ex. duty. The suppression by the assessee for misclassification and short levy, therefore, is established." On the question of maintainability the law declared is as in Mohammad Nooh (supra) regarding judicial review being available to a litigant in a proper case where a superior Court woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able in the facts and circumstances of this case particularly when the show cause notice was belated, it did not refer to wilful mis-statement or suppression of facts and thus the petitioner should not be barred from availing judicial review as the subsequent appeal preferred by it was dismissed as delayed. On merits Mr. Bharadwaj could not demonstrate that the description given by the petitioner in the aforesaid annexure was a mis-description as a wilful mis-statement or such description was in wilful suppression of facts and the goods could not be called switches as opposed to transformers. The case of the revenue as appearing from the show cause notice and the adjudicating order is that the goods though switches were only switches by com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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