9911796707
TMI Blog1987 (8) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... cial and technical parlance. They further contended that they were merely components of refrigeration and air-conditioning machinery manufactured by them. They, therefore, contended that the same could not have been classified under Tariff Item 33(2), of Central Excise Tariff. This contention was negatived by all the authorities till the matter came before the Government in revision sometime in 1980. However, at the time of hearing of this matter, it was pointed out that even though the goods are not covered under Tariff Item 33(2), they could be classified under Item 33(3), i.e., "Electric Fans not otherwise specified." Thereupon the petitioners submitted that this was being pointed out to them for the first time when the matter was being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the rate of duty under Item 33(2) and 33(3), Central Excise Tariff was the same at the material time, Government consider that it would be in the fitness of things if the issue of confirmation of the demand with reference to Item 33(3), Central Excise Tariff were left to the lower authorities. Having regard to the foregoing Government set aside the two orders in appeal by which the impugned goods have been held as classifiable under Item 33(2), CET. Government would, however, make it clear that this order is passed without prejudice to the Assistant Collector adjudging afresh the question of confirmation of the demand with reference to Item 33(3), Central Excise Tariff after the petitioners are given a proper opportunity of sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable inasmuch as there was no classification under Tariff Item 33(3) of the Central Excise Tariff at all. They also pointed out that no adjustment was possible unless proper procedure was not (sic) followed in that behalf. They also pointed out that till such time the classification was done, there was no question of any adjustment of duty paid earlier. 3. This was negatived by the Assistant Collector by his order dated 18-11-1981. It is this order which is challenged in this petition. 4. The Assistant Collector passed the said impugned order on certain basic misconceptions as to the order passed by the Government in revision earlier. He proceeded on the assumption that the order in revision referred to above had already held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this, I hold that the duty which has already been paid by the party under T.I. 33(2) stands confirmed as duty paid on the impugned goods under T.I. 33(3). Since the amounts of duty payable under either sub-item would be same, there is no question of any excess amount paid by the party." 5. In my view this is a clear case of complete misdirection on the part of the Assistant Collector of Central Excise. The Government had left the issue open and had in fact remanded the matter back to the lower authorities who were to hear the matter afresh after issuing a show cause notice. Therefore, no classification had been done as stated by the Assistant Collector in the impugned order. Therefore, the Assistant Collector could not have proceeded o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am in agreement with these observations and, therefore, this petition will have to be allowed. 6. At this stage, Mr. Shah appearing for the respondents submits that the matter may be remanded back to the Government of India who had passed the order in revision. I find no substance in this submission of Mr. Shah. The order is clear. Government had not decided that the goods would fall under Item 33(3). That question had been clearly left open to be decided by the lower authorities after hearing the parties afresh. In these circumstances, there will be no question of remanding the matter back to the Government. 7. In the result, rule made absolute in terms of prayer (b) of the petition. Amount to be paid to the petitioners within a perio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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