2004 (2) TMI 59

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..... redecide the appeal
S/Shri S.S. Sekhon, Member (T) and Krishna Kumar, Member (J) Shri P.B. Pardeshi, DR, for the Appellant. Shri Rohan Shah, Advocate, for the Respondent. [Order per : S.S. Sekhon, Member (T)]. - Revenue has filed this appeal contending that the letter dated 4-9-2001 was not a decision or an order envisaged under Section 35A to call for a cognizance by CCE (Appeals) to have passed an order in detail and arrive at a classification of the product. They have termed this letter to be a 'communication letter' and not an appealable order. The ld. DR relies upon a catena of decisions and submits that this letter was consequent to exercise of power vested in the proper officer under 2nd proviso to Rule 9B enabling the said off .....

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..... 060. Sub : Classification Declaration filed under Rule 173B. By M/s. Radhaballbha Silk Mills, Mumbai - 60.  Please refer to your Classification Declaration Nos. 01/2001-02 w.e.f. 1-3-2001, 01/2000-01 w.e.f. 25-1-2001 w.e.f. 1-4-2001 filed by you under Rule 173B of Central Excise Rules, 1944. In the above said classification declarations you have classified the products under Chapter Headings 5402.61 and 5402.62 of Central Excise Tariff Act, 1985, are not accepted. As the matter is under investigation you as directed to classify the said products for which you are paying Central Excise duty under Chapter Heading 5402.31 & 5402.32 as earlier classification declaration No. 1/2000-01, dated 12-12-2000." indicates that it has a cle .....

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..... ding duties. No copy of the same has been produced before us. (b) The findings herein above induce us to conclude that the letter dated 4-9-2001 is an order on classification arrived at after enquiries, albeit incomplete; the order for classification in the manner directed, determines and declares rights and imposes an overall fiscal liability on the assessee. Such directions cannot be mere communication of an private opinion or advise by the proper officer. The tests laid down in the case of Jaswant Sugar Mills Ltd. (Supra), relied by both sides, are satisfied. The letter dated 4-9-2001 is found to be a decision/order that could be taken cognisance by Commissioner (Appeals) in the facts of this case when Section 35A of Central Excise Act, .....

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