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TMI Blog2020 (3) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... enged the annual capacity of production determined by the Dy. Commissioner, but challenged only the classification of the commodity, thus , instead of deciding the classification of the commodity, Learned Commissioner (Appeals) left it open and disposed the appeals. Impliedly, since the classification issue was not determined by the Learned Commissioner (Appeals), the respondent also have not challenged the said order. The Commissioner should proceed with the adjudication of show cause notice dated 1-7-2016 to which both sides have fairly agreed. The Respondent is at liberty to adduce evidences in support of their case before the adjudicating authority. The adjudication be completed at the earliest after affording reasonable opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to Chewing Tobacco in accordance with the declaration filed. As both Chewing Tobacco and Jarda Scented Tobacco were notified under Section 3A of Central Excise Act, 1944 and are subjected to different rate of duty in terms of relevant notifications, samples were drawn by the jurisdictional Deputy Commissioner on 27-7-2015 and sent the same for testing at CRCL, New Delhi to ascertain whether the product was Chewing Tobacco without lime tubes classifiable under CSH 2403 99 10 as declared by the Respondent. Pending test report, the jurisdictional Assistant Commissioner determined the production capacity on the basis of said declarations filed by the party. On receipt of the test report dated 7-10-2015, wherein the sample was opined to be J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, 2016 under protest considering the product manufactured as Jarda scented tobacco. On completion of investigation show cause notice was issued to the respondent on 1-7-2016 alleging mis-declaration. 3. Pending adjudication of the show cause notice dated 1-7-2016, the appeals filed before the Learned Commissioner (Appeals) reached for final hearing. The Ld. Commissioner (Appeals) after considering the submissions and the records observed as follows : I have carefully gone through submission made during the hearing and the written submission. The show cause notice C.No. IV(16)HQAE/Enq/ Som Flavour/SNP/24/2015/3980, dated 1-7-2016 covers the issue of classification of the product which has been disputed before me in these appeals. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the respondent and quantifying the amount of differential duty payable/paid by the respondent for the relevant period. 6. The Ld. Consultant for the respondent has submitted that before the Commissioner (Appeals), they have not challenged the production capacity determined by the jurisdictional Deputy Commissioner; however, they challenged consideration of their product as Jarda Scented Tobacco instead of Chewing Tobacco without lime tubes . The Ld. Commissioner (Appeals), however, has not decided the issue but left it open and directed it to be decided since also raised in the demand notice issued to the Respondent after detailed investigation on 1-7-2016. It is his contention that they should be given a fair opportunity to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of production of the machines installed in their factory premises filed by the respondent under the Relevant rules, the jurisdictional Deputy Commissioner to clear the doubt about the nature and classification of the commodity declared by the Respondent drew samples in July, 2015 and sent for chemical analysis. On the basis of the test report, he observed that the commodity declared was not chewing tobacco without lime tubes, but it was Jarda scanted tobacco. The said capacity determination Orders were passed after handing over the relevant test Report to the Respondent. These orders were challenged before the Learned Commissioner (Appeals) by the respondent. In the appeals before the Ld. Commissioner (Appeals), the Respondent had challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity of production determined by the Dy. Commissioner, but challenged only the classification of the commodity, thus , instead of deciding the classification of the commodity, Learned Commissioner (Appeals) left it open and disposed the appeals. Impliedly, since the classification issue was not determined by the Learned Commissioner (Appeals), the respondent also have not challenged the said order. Consequently, the claim of the Revenue that the issue of classification has been decided by the Dy. Commissioner and the Ld. Commissioner (Appeals) erred in left it open is without merit in as much the Ld. Commissioner (Appeals) in exercise of the Appellate jurisdiction modified the Order and left the issue of classification open and subjected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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