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TMI Blog2019 (7) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... der appealed against. The determination of duty with relation to particular Entry of the Central Excise Act was well within the power of the first Appellate Authority as well and therefore, even if the appellant filed an appeal against the lower rate of duty than the one proposed in the Show Cause Notice, it does not prevent the Commissioner (Appeals) from restoring a higher demand of duty in terms of the Show Cause Notice issued to the Appellant by the Adjudicating Authority. The Commissioner (Appeals) has given his own reasons for assessing the duty under the particular Entry No.28444000. The Appellate Authority was not bound by the demand of lower rate of duty under CETH 30063000 by the Adjudicating Authority. Petition dismissed. - Writ Appeal No.809 of 2019 - - - Dated:- 17-7-2019 - Dr. Justice Vineet Kothari And Mr. Justice C.V. Karthikeyan For the Appellant : Mr.N.Viswanathan For the Respondents : Mr.Pramod Kumar Chopda Sr. Standing Counsel JUDGMENT DR.VINEET KOTHARI, J. The appellant, Dr.Kamakshi Memorial Hospitals Private Limited, has filed the intra-court appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have demanded a different duty than the one proposed in the Show Cause Notice. The first Appellate Authority, namely the Commissioner (Appeals), vide his order dated 27.4.2018 , held that the Adjudicating Authority should have levied the higher duty only under CETH 28444000 as radio active elements and therefore, he confirmed the said demand in terms of the original Show Cause Notice. 6. Against the said order of Commissioner (Appeals), instead of filing a second appeal before the Customs Excise and Service Tax Appellate Tribunal, the appellant directly approached this Court by way of writ petition, which came to be disposed of by the learned single Judge of this Court, by the order under appeal on 16.11.2018 , remitting the matter back to the Adjudicating Authority with the following observations: 26. In this case, I have already pointed out that the Adjudicating Authority himself had traversed beyond the scope of the show cause notice and had given a finding on the classification of the subject matter product as the one falling under heading 3006 3000 and not under heading 2844 4000 as alleged in the show cause notice. Therefore, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification dispute, the matter has to go back to the Adjudicating Authority so as to pass a fresh order of adjudication on the classification issue, after issuing proper notice to the petitioner. 28. Accordingly, the Writ Petition is allowed and the impugned order of the Appellate Authority is set aside and the matter is remitted back to the first respondent, Adjudicating Authority, for re-considering the whole issue and pass a fresh order of adjudication, after putting the petitioner on notice. This Court is also of the view that before issuing such notice on the petitioner, it is better for the Adjudicating Authority to take opinion/view from the experts on the subject matter product and thereafter, to form an opinion and issue show cause notice to the petitioner. Needless to say that the earlier finding rendered by the Adjudicating Authority on the above classification issue, cannot stand in the way of deciding the matter afresh after considering the objections filed by the petitioner. In other words, the Adjudicating Authority has to apply his independent mind on the issue, uninfluenced by any of the observations made in the order of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, learned counsel for the Revenue, Mr.Pramod Kumar Chopda, submitted that the learned Single Judge has rightly set aside both the orders and has restored the matter back to the Adjudicating Authority, as there was apparently a confusion about the classification of the machine Cyclotron imported in the present case and applicable Entry under the Central Excise Tariff Act and therefore, since the first Appellate Authority had taken a different view than the one taken by the Adjudicating Authority and assessed the demand as per the original show cause notice issued by the Adjudicating Authority himself, whereas the Adjudicating Authority had assessed only a lower rate of duty under a different Chapter, the entire issue deserved to be thrashed out and discussed in detail once again with the help of the relevant evidence and therefore, the learned Single Judge was perfectly justified in remanding the case back to the Assessing Authority. 12. The learned counsel further submitted that the appellant had an alternative remedy to approach the CESTAT by way of second appeal against the order passed by the Commissioner (Appeals), but, the appellant itself cut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said law. 16. The determination of duty with relation to particular Entry of the Central Excise Act was well within the power of the first Appellate Authority as well and therefore, even if the appellant filed an appeal against the lower rate of duty than the one proposed in the Show Cause Notice, it does not prevent the Commissioner (Appeals) from restoring a higher demand of duty in terms of the Show Cause Notice issued to the Appellant by the Adjudicating Authority. The Commissioner (Appeals) has given his own reasons for assessing the duty under the particular Entry No.28444000. The Appellate Authority was not bound by the demand of lower rate of duty under CETH 30063000 by the Adjudicating Authority. 17. If what the learned counsel for the appellant contended was right, then the powers of the Appellate Authority will be rendered nugatory and unnecessarily narrowed or restricted down, whereas the Legislature never intended to do so. Therefore, wide power has been conferred under Section 35A(3) of the Act upon the Appellate Authority. Therefore, we reject the contention of the learned counsel for the appellant. 18. As far as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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