9911796707
TMI Blog2019 (7) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... preventive and curative treatment for cancer. Since the said machine Cyclotron induces radio activity in the course of developing and processing the FDG/F18, its establishment, functioning and processing is regulated by the Atomic Energy Commission of India. The appellant obtained necessary license/ permission from the Atomic Energy Regulation Board for the said purpose. 3. The question involved in the present case is about the classification of the said machine under the Central Excise Tariff Act whether it falls under CETH 28444000 of the said Act attracting Excise Duty at a higher rate, which was quantified by the Adjudicating Authority initially at Rs. 78,19,339/-, or whether it will fall under CETH 30063000 as 'diagnostic reagent' attracting a lower rate of duty, which was quantified at Rs. 36,64,506/-. 4. The Appellant was issued a Show Cause Notice initially by the Adjucating Authority on 03.5.2016 for applying the higher rate of duty under CETH 28444000 for demanding duty at Rs. 78,19,339/-, with applicable interest from April 2011 to March 2013 and the appellant filed its detailed objection and reply on 26.8.2016. The Adjudicating Authority passed an Order-in-Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the petitioner had accepted the said classification. On the other hand, the very filing of the appeal against such finding on classification would show that they are disputing even such classification. Under the above circumstances, when the appeal was filed, unfortunately the Appellate Authority, on his turn, travelled beyond the scope of the appeal and found that the subject matter product is not classifiable under 30063000 and on the other hand, it is classifiable under 2844 4000 as alleged in the show cause notice. I have already pointed out that this finding of the Appellate Authority is totally beyond the scope of the appeal as the Revenue has not chosen to file any appeal against the classification finding rendered by the Adjudicating Authority. I have already pointed out that the Appellate Authority has travelled beyond his power and competence conferred under section 35A of the said Act in re-classifying the subject matter product. 27. Considering the above stated facts and circumstances, this Court is of the view that the classification issue on the subject matter product is to be reconsidered once again from the stage of adjudication, after issuing proper no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, modified or annulled the order passed by the Adjudicating Authority which was under appeal before him, as the Adjudicating Authority had only imposed the lower rate of excise duty under CETH 30063000 and therefore, the appellant was justified in assailing the said order directly before the learned Single Judge by way of writ petition. But, the learned Single Judge has set aside both the orders and remitted back the entire matter to the Adjudicating Authority and has directed issuance of a fresh show cause notice, which is now barred by limitation under Section 11A of the Act and therefore, such a direction could not have been made by the learned Single Judge. 9. The learned counsel relied upon certain decisions to support his contention, namely Commissioner of Customs & Central Excise v. Hongo India (P) Ltd. [2009 (236) ELT 417 (SC)], Rajaram Johra v. Commissioner of Customs (Airport & Cargo), Chennai [2019 365 ELT 424 (Mad.)], and Union of India v. Kirloskar Pneumatic Company [1996 (84) ELT 401 (SC)]. 10. The above judgments have been relied upon to throw light on the scope of the appellate powers of the authority as well as the parameters within which the High Court should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, there is no question of any limitation of Section 11A of the Act hitting such a notice now, as contended by the appellant. 14. Having heard the learned counsel for the parties and upon perusal of the material on record and judgments cited at the Bar, we are of the clear and considered opinion that there is no merit in the present writ appeal of the assessee / appellant and the same deserves to be dismissed. The reasons are as under. 15. We do not find any merit in the contention raised by the learned counsel for the appellant that the Commissioner (Appeals), while dealing with the first appeal of the appellant, had no power to assess the duty on the machine "Cyclotron" imported in terms of the Show Cause Notice issued by the Adjudicating Authority himself, but assessed the duty at a lesser rate while passing the original adjudicating order. The powers of the first Appellate Authority are clearly defined in Section 35A(3) of the Act, which clearly stipulates that the Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ Court is to be curtailed or restricted in any manner. We do not see any error, much less miscarriage of justice in the directions passed by the learned Single Judge in remanding the entire case back to the Adjudicating Authority for deciding the case afresh in accordance with law. The appellant himself created the confusion by contending that applying the lower rate of duty against the Show Cause Notice issued by the Adjudicating Authority, even though he succeeded before the Adjudicating Authority, who, to his dismay, annulled the favourable part of the order of the Adjudicating Authority and raised the demand of higher duty as originally proposed in the Show Cause Notice. Faced such an adverse situation, instead of availing the regular remedy by way of second appeal before CESTAT, the appellant chose to invoke the writ jurisdiction, where the learned single Judge, in our opinion, had rightly and justifiably restored the matter back to square one and directed the Assessing Authority to decide the issue again afresh in accordance with law. Such a power to remand back to the Adjudicating Authority cannot be objected to by the appellant by way of present intra court appeal. 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
