TAVIN FASHIONS Vs. CC

JUDGEMENT

(1.) M/s. Tavin Fasions has filed the present Appeal against the Order -in -Appeal No. 122/2004 dated 28.4.2004.

(2.) Shri Rupesh Kumar, learned Advocate submitted that the Appellants imported shoes of Chinese Origin in September, 2003 and claimed the classification under sub -Heading 6405 2000 of the first Schedule to the Customs Tariff Act; that the Revenue has classified the shoes under sub -Heading 6404 1110 of the Tariff as sports footwear and imposed anti -dumping duty in terms of Notification No. 96/2001 -Cus dated 25.9.2001; that the Department has also further held that impugned shoes were branded as they were embossed with names such as "RESPONSE, 2003", "WEIERDUN", that on Appeal the Commissioner (Appeals) has upheld the Adjudication order to the effect that the shoes would be considered as branded goods; that however, the Commissioner has remanded the matter of classification to the Adjudicating Authority for readjudication. Learned Advocate, further submitted that the Commissioner (Appeals) does not exercise the powers of remanding the matter to the Adjudicating Authority after the amendment carried out by Section 110 of the Finance Act, 2001. He relied upon the decision of Larger Bench of the Tribunal in the case of CCE Bhubaneshwarv. Oripol Industries wherein the Tribunal was considering whether after amendment of Section 35A of the Central Excise Act by Finance Bill 2001, the Commissioner (Appeals) can exercise the power of remanding the matter. The Larger Bench of the Tribunal has held that the Commissioner (Appeals) does not retain the power of remand after the amendment made in Section 35A. The amendment similar to the amendment made in 35A of the Central Excise Act was made in Section 128A of the Customs Act. He also contended that the Department has not brought on record any evidence to prove that names such as "RESPONSE, 2003", "WEIERDUN" has any connection in the course of trade between the shoes and the Appellants; that therefore shoes cannot be regarded as branded shoes. We also heard Shri D.N. Choudhary, learned Senior Departmental Representative, who fairly agreed that the Commissioner (Appeals) does not exercise he power of remand.

(3.) After considering the submissions of both the sides, we hold that the Commissioner (Appeals) after the amendment of Section 128A of Section 110 of the Finance Act, 2001 does not have the power to remand the matter to the Adjudicating Authority. This view has been expressed by the Larger Bench of the Appellate Tribunal in the case of Oripol Industries. In view of this, the matter is to go back to the Commissioner (Appeals) for deciding the matter finally instead of remanding the issue of classification. As we are remanding the matter to the Commissioner (Appeals), we refrain ourselves from the issue of brand name and direct the appellants to make the submissions in this regard also to the Commissioner (Appeals) who would decide the issue of brand name also along with the classification issue. The Appeal is thus allowed by way of remand.