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TMI Blog2017 (7) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ssification under item No. 18 - III (i) as stated above. The said classification list was approved provisionally by Revenue on 31/05/1983 and goods were cleared accordingly. The relevant tariff entry viz. item No. 18 of the erstwhile Central Excise Tariff is as follow :- Item 18 - Man made fibres, filament yarn and cellulosic spun yarn I. Man-made fibres, other than Mineral fibres (i) Non-cellulosic (ii) Cellulosic III. Cellulosic spun yarn - Yarn in which man-made fibre of cellulosic origin predominates in weight, in or in relation to the manufacture of which any process is ordinarily carried out with the aid of power - (i) Not containing any man-made fibres of non-celulosic origin (ii) Containing man-made fibres of non-cellulosic origin. Basically it is the case of appellant that appellant manufactured the impugned Yarn by blending of viscos fibre in predominance and non-cellulosic synthetic waste. Since the resultant yarn contained viscos fibre of cellulosic origin in predominance and non-cellulosic waste, the same merited classification under tariff item No. 18 - III (i) 18/08/1983 Appellant was in receipt of letter of Superintendent, Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/07/2008 The aforesaid appeal was disposed off by the Hon'ble Division Bench vide order dated 10/07/2008 whereby the Hon'ble Court allowed the appeal and in fact held that the Calcutta High Court did not have territorial jurisdiction to entertain the writ petition, which was filed by the Appellant and liberty was given to the "appellant to approach appropriate forum". September/October 2008 In pursuance to the aforesaid order, appellant filed writ petition before the Hon'ble Rajasthan High Court at Jaipur which was registered as civil writ petition No.6607 of 2008. 13/05/2009 The Hon'ble Rajasthan High Court disposed off the above writ petition vide order dated 13/05/2009 with following observations : "The writ petition is therefore dismissed. It is clarified that this dismissal of the writ petition will not come in the way of the petitioner in "availing such legal remedy which may be available to him under law". 24/07/2009 In terms of and in pursuance to the aforesaid order dated 13/05/2009 (certified copy dated 29/05/2009 thereof was made available to appellant on applying for the same) of the Hon'ble Rajasthan High Court, appellant filed appeal before the learned Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the approval of the classification list to the Commissioner (Appeals), hence the present appeal, which is filed on 24/07/2009, is time barred". 4. Being aggrieved, the appellant is before this Tribunal on the issue of limitation. The learned Counsel states that the issue is no longer res-integra in view of the ruling of Hon'ble Supreme Court in M.P. Steel Corporation Vs. CCE reported in 2015 (319) E.L.T. 373 (S.C.) being judgment dated 23/04/2015, wherein under somewhat similar facts and circumstances the Apex court have observed that in the matter of orders passed prior to amendment in the year 2001 and where the appellant have spent time before other judicial forums, in such cases the limitation has to be computed under the then existing provisions, as the limitation started to run before the amendment was made in the year 2001. If the limitation is so computed the learned Counsel states that they have filed the appeal on the 90th day from the date of communication by the Superintendent in 1983. We hereby reproduce the operating part of the order of Hon'ble Supreme Court order: - "52. The present case stands on a slightly different footing. The abortive appeal had been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appeal itself would vanish given the shorter period of limitation provided by Section 128 after 2001. 53. We, therefore, set aside the order dated 25-2-2004 and remand the case to [jurisdictional Commissioner (Appeals)] for a decision on merits. The appeal is allowed in the aforesaid terms. There will be no order as to costs". 5. Heard learnedly Commissioner AR for the Revenue, who relied on the order of the learned Commissioner (Appeals). 6. Having considered the rival contentions, we are satisfied and we hold that in the appellant's case limitation has to be computed in accordance with the provisions as they stood in the year 1983 when they received the communication communicating the order of the Assistant Commissioner through the Superintendent on or about 25/08/1983 and thereafter they have preferred writ petition before Hon'ble Calcutta High Court on 14/09/1983. The time taken from the date of receipt of the communication from Superintendent to the date of filing writ before the High Court is 19 days. Thereafter, the matter was subjudice and finally was decided by Hon'ble Rajasthan High Court on 13th May 2009 when the writ petition was dismissed on the ground of altern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pleaded that they have never received any order for finalizing of provisional assessment or approved classification list for the impugned period. As such, we note that the impugned order did not examine the case on merits based on the submissions made by the appellants. The actual nature of product, the nature of manufacture and applied case laws alongwith other supporting evidence that is filed by the appellant have not been examined by the First Appellate Authority. In fact, since the Original Authority himself did not examine the issue before finalizing the classification list against which the appellants were aggrieved, the Commissioner (Appeals) did not have a detailed order to examine and to decide. What was available was only a communication from the Superintendent intimating the approval of classification. Based on that, no elaborate examination could be made by the First Appellate Authority. Now, the appellants are before us submitting various supporting evidence, as listed above. In these circumstances, we find it fit and proper that the issue on merit regarding correct classification of the impugned product should be examined and decided afresh by the Jurisdictional Or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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