9911796707
TMI Blog1999 (3) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... l whose decisions are final by virtue of Section 35C(4) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act'.) The grievance voiced by the petitioner is that despite the decision of the Tribunal which has become final, the Central Board of Excise and Customs (hereinafter referred to as 'the Board'), by issuing circular vide Annexure 'D' has tried to nullify the effect of the decision of the Tribunal which according to the petitioner, amounts to indirect legislation by circulars. The subject-matter of the circular dated 3-3-1997 issued by the Board under Section 37B is produced at Annexure 'D'. It was represented to the Board that there is no uniformity in the classification of Di-Calcium Phosphate of animal feed grade for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal's judgment and order cannot be set aside, more particularly, in the instant case, when against the order of the Tribunal under Section 35L of the Act, statutory appeal being Civil Appeal No. 2076/98 was preferred which has been dismissed by order dated 5-11-1998 by the Apex Court. 3. The Commissioner (Appeals), Ahmedabad, followed the decision in the case of M/s. Pubjab Bone Mills and M/s. Protinkem v. Collector of Central Excise, Chandigarh, reported in 1988 (38) E.L.T. 389 (Tribunal), wherein it was held that Di-Calcium Phosphate (D.C.P.) manufactured is classifiable under sub-heading 2302.00. He took the view that the product is classifiable under Heading 23.02 and not under any other heading or sub-heading. The Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97 (93) E.L.T. 641 for the proposition that the classification of DCP animal feed grade would be justified considering the material as cattle feed. Considering the material and the law laid down by the Apex Court and the view expressed by the Tribunals, the Tribunal in the instant case pointed out, that the classification of DCP animal feed grade under Heading 23.02 has been confirmed by the Tribunal in more than one of its decisions consistently. Thus, the Tribunal opined that there is no reason to interfere with the conclusion of the Commissioner (Appeals) wherein it is held that the goods in question are correctly classifiable under sub-heading 2302.00 of the Tariff Act. This decision was carried in appeal before the Apex Court. As we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods issue such orders, instructions and directions to the Central Excise Officers as it may deem fit, and such officers and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the said Board : Provided that no such orders, instructions or directions shall be issued, so as to require any Central Excise Officer to make a(a) particular assessment or to dispose of a particular case in a particular manner, or (b) so as to interfere with the discretion of the Collector of Central Excise (Appeals) in the exercise of his appellate functions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... views expressed by the Tribunal. 5.Mr. Patel, learned Advocate appearing for the respondent submitted that before the Tribunal, the contention was raised but the Tribunal stated that for the first time, it cannot be raised and more particularly when that aspect would require examination of facts. He submitted that the circular is issued for the reasons indicated in the preamble of the circular itself. We are not able to agree with the contention raised by Mr. Patel for the simple reason that the Tribunal not in one but more than one decisions, has given positive finding that entry under sub-heading 2302.00 under Heading 23.02 relates to Preparations of a kind used in animal feeding, including dog and cat food. Preparation of food of a kin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
