PREMIER POLYSACKS (P) LTD. AND Vs. CCE

JUDGEMENT

(1.) Both these appeals arise out of a common Order -in -Appeal No. 262 to 270/2003 (SCN) TRY -II dated 29.5.2003 passed by the Commissioner of Central Excise (Appeals), Trichirapalli, whereby the Commissioner has held that the date of effect of the Board's order issued under Section 37B of the CE Act, 1944 is the date on which the Trade Notice communicating the Board's order, was issued, The issue arising for determination in both these appeals are same and hence these were heard together and orders reserved. These appeals are therefore taken up for decision by this common order.

(2.) The brief facts of the case are that Central Board of Excise and Customs vide Section 37B order No. 8/92 dated 24.9.92, had ordered that HDPE/FP strips, sacks and fabrics are classifiable under various heading of Chapter 39. Consequently, the assessee -appellants re -classified their products and started paying duty at the higher rate applicable to goods falling under the said chapter ranging from 25.9.02 to 22.11.92 Show cause notices were issued to the appellants informing them of the change in classification and demanding differential duty for various periods ranging from the date of the Section 37B order to the date from which they had started paying duty at the higher rate. The show cause notices culminated in the order passed by the original authority whereby the original authority held that the orders of the Board could be made applicable only from the date of communication and filing of the revised classification list and that the revised classification and consequential demand were operative not retrospectively but only from the date of show cause notices. While holding so, he has relied upon the order of the Tribunal in the case of Brakes India Ltd. and Ors. v. CCE, 1987 (14) ECC 157(T): 1987(31) ELT 1030 wherein it was held that revised classification and consequential demand is not operative retrospectively but from the date of show cause notice. He therefore, dropped the further proceedings in the show cause notices.

(3.) Against the above decision of the original authority, the Department moved the Commissioner (Appeals) who by the impugned order held that the date of effect of the Board's order is the date on which the Trade Notice was issued communicating the Board's order. In support of his decision, he has relied upon the judgment of the Hon'ble Supreme Court in the case of M/s HM Bags Manufacturer reported in 1997 (94) ELT 3 (SO wherein the Hon'ble Apex Court held that the Board's order issued under Section 37B and communicated under the Trade Notice dated 5.11.92 could not be effective from the date prior to the date on which the Trade notice was issued. In the present case, the Board's order is dated 24.9.92 while the Trade Notice issued by the Trichy Commissionerate is dated 1.10.92. Hence the Commissioner (Appeals) has held that the effective date of the Board's order is the date on which Trade notice was issued viz. 1.10.92.