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Commissioner of C. Ex. Vs. Paharpur Cooling Towers Ltd. - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Judge
Reported in(2005)(186)ELT72TriDel
AppellantCommissioner of C. Ex.
RespondentPaharpur Cooling Towers Ltd.
Excerpt:
.....confirmed the demand but the commissioner (appeals) had set aside the same without going into the issue of classification. the revenue challenged that order-in-appeal of the commissioner (appeals), the tribunal has remanded the matter to the commissioner (appeals) with a direction to go into the issue of classification of the goods in dispute and decide the duty liability of the respondents accordingly. we do not find any mistake of fact of law in the impugned final order of the tribunal. the pendency of classification issue before another authority did not prevent the commissioner (appeals) from going into that issue as the duty demand has been based on this issue. the respondents will have full opportunity to put up their defence before the commissioner (appeals).no prejudice has been.....
Judgment:
1. Through this ROM, the respondents have sought the recall of the Final Order No. 714/04-B, dated 18-8-2004 vide which the appeal of the Revenue (Appellants) was accepted and the order-in-appeal was set aside.

The learned Counsel has contended that since the issue regarding classification of the goods in dispute (Finned Tube for air cooler and Finned tube heat exchanger) was already pending before the adjudicating authority in terms of the order of the Tribunal, the Commissioner (Appeals) in the present appeal, could not be again directed to decide the classification issue and the duty liability of the respondents on merits accordingly. Therefore, this mistake in the impugned order deserves to be rectified.

3. In our view, the contention raised by the learned Counsel is misconceived and not liable to be accepted. From the record, we find that duty demand was raised against the appellants in respect of the goods in dispute by issuing them a separate show cause notice dated 13-5-1994. The adjudicating authority confirmed the demand but the Commissioner (Appeals) had set aside the same without going into the issue of classification. The Revenue challenged that order-in-appeal of the Commissioner (Appeals), the Tribunal has remanded the matter to the Commissioner (Appeals) with a direction to go into the issue of classification of the goods in dispute and decide the duty liability of the respondents accordingly. We do not find any mistake of fact of law in the impugned final order of the Tribunal. The pendency of classification issue before another authority did not prevent the Commissioner (Appeals) from going into that issue as the duty demand has been based on this issue. The respondents will have full opportunity to put up their defence before the Commissioner (Appeals).

No prejudice has been said to have been caused to them by passing the final order of the Tribunal. The impugned order does not suffer from any patent mistake of fact or law. The same cannot be recalled. The ROM application is dismissed.


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