Primella Sanitary Products Pvt. LTD. vs Collector of Central Excise, Goa

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(SC) 681

2005(5) Supreme 742
Supreme Court of India
S.N. Variava, Dr. AR. Lakshmanan & S.H. Kapadia, JJ.
Primella Sanitary Products Pvt. Ltd. —Appellant
versus
Collector of Central Excise, Goa —Respondent
Civil Appeal Nos. 1535-1540 of 2000 with C.A.No. 3758 of 2001
Decided on 20-4-2005
Counsel for the Parties :
For the Respondent : S/Shri T.S. Doabia, Senior Advocate, Ravinder Aggarwal and P. Parmeswaran, Advocates.

Headnote:Central Excise—Appellant assessee manufactured sanitary towels and were filing classification classifying product under Tariff Item 56.01—Show cause to classify product under Tariff Item 48.18—Adjudication order issued—Counsel for assessee appellant both before Tribunal and Appellate Authority against adjudication order made a concession and appeals were dismissed—Appeal—No substance in contention that concession was in respect of matter of law—Facts admitted were that yarn/fibre was used which had nothing to do with textile—Product was rightly classifiable under Tariff heading 48.18—As regards question of limitation only reason for upholding extended period of limitation was that party had not disclosed composition of the product—With each classification a statement was annexed showing manufacturing process which mentioned that “rayon grade wood pulp” was being used—On that basis product was held classifiable under Item 48.18—Impugned order holding extended period available could not be sustained and was liable to be set aside.
Held : On admitted facts it has been concluded that the yarn/fibre used has nothing to do with textiles. It has on facts been held that the product is rightly classifiable under Tariff Heading No. 48.18. It is these findings which had been challenged in the Appeal No. contrary evidence had been led by the party. In fact, M/s. Primella Sanitary Products Pvt. Ltd. had not even filed a reply to the show cause notices. The concession made by Counsel was that the Appellants’ goods were similar to the goods of M/s. Patsan Hygiene Industries Pvt. Ltd. and that in view of Tribunal’s earlier decision he had instructions not to press the Appeal. Appellants knew that their Appeal was dismissed on this concession. The Appeals against the adjudicating orders came up for hearing later. If the concessions were not under instructions the party would have now agitated. On the contrary the same Counsel is again permitted to make the concession in the other Appeal. We, therefore, find it impossible to believe that the Counsel made this concession without instructions from the client. In our view, it has been correctly recorded, in the order dated 22nd April, 1999, that the concession had been made under instructions. As the matter of classification has proceeded on a matter of concession of facts we do not allow the Appellants to withdraw from that concession. They are now not permitted to argue on the question of classification. We, however, clarify that we have not considered the matter of classification on merits. As regards the question of limitation, as has been stated earlier, the party filed classification list from 1986 onwards. Thus, classification list had been approved from time to time. It is only in 1991 that for the first time the classification was questioned. The only reason given for upholding the extended period of limitation is that the party had not disclosed the composition of their product and that they had not disclosed what material was used in their product. We, however, find that with each classification list a statement had been annexed showing the manufacturing process. In the manufacturing process it has been clearly mentioned that “rayon grade wood pulp” was being used. Thus, the material used was disclosed by the party. It is on the basis of use of this material that the Collector (Appeals) holds that the product would be classifiable under Tariff Item No. 48.18. Thus, all necessary material was available to the Department. There is no new material which has been discovered by the Department. In these circumstances, in our view, the adjudicating order as well as the order of CEGAT holding that the extended period is available cannot be sustained and are hereby set aside. (Para 13)

Order

These Appeals can be disposed of by this common order.

2. In Civil Appeal Nos. 1535-1540 of 2000, there are two Appellants viz. (i) M/s. Primella Sanitary Products Pvt. Ltd. and (ii) M/s. Christine Hodein (I) Pvt. Ltd. In Civil Appeal No. 3758 of 2001 there is only one Appellant namely, M/s. Primella Sanitary Products Pvt. Ltd.

3. Briefly stated the facts are as follows:-

These Appellants manufacture sanitary towels. For a number of years they were filing classification list classifying their products under Tariff Item No. 56.01. The classification lists had been approved by the Department. In 1991 these two parties filed classification lists again classifying their products under Tariff Item No. 56.01. These classification lists were also approved. However, the Collector of Customs by his order dated 24th January, 1992 directed filing of an Appeal against the approval of the classification list. Thus, the Department filed an Appeal to the Collector (Appeals). The Collector (Appeals) by his order dated 22nd April, 1993 held that the products are classifiable under Tariff Item No. 48.18.

4. Even before the Collector had passed his order, show cause notices has been issued to both the parties classifying their products under Tariff Item No. 48.18 and demanding duty and penalty.

5. In these Appeals, we are not concerned with the show cause notices which are within the limitation period. We are concerned with only two show cause notices, one dated 11th November, 1992 issued to M/s. Primella Sanitary Products Pvt. Ltd. and another dated 17th September, 1992 issued to M/s. Christine Hodein (I) Pvt. Ltd. wherein duty was demanded for the period from April, 1988 to March, 1991 and September 1987 to March, 1991 respectively. By the Adjudicating order the Appellants were directed to pay duty and penalty on the footing that their products were classifiable under Tariff Item No. 48.18.

6. Against the order dated 22nd April, 1993 passed by the Collector (Appeals) classifying the product under Tariff Item No. 48.18, the Appellants filed an Appeal before the Customs, Excise & Gold (Control) Appellate Tribunal (in short “CEGAT”).

7. Thereafter, they filed another Appeal before CEGAT against the adjudicating order claiming demand and duty.

8. In the Appeal filed against the order of the Collector (Appeals) dated 22nd April, 1993 the Counsel appearing for the Appellants made a concession that their products were similar to one M/s. Patsan Hygiene Industries Pvt. Ltd. and that as in the case of M/s. Patsan Hygiene Industries Pvt. Ltd. it has already been held by the Tribunal that the product was classifiable under Tariff Item No. 48.18, he had instructions not to press the Appeal. On such concession, the Appeals were dismissed by the Tribunal.

9. Similarly, when the Appeal against the order of adjudication came up for hearing, Counsel again made a concession that he was only challenging the demand beyond the period of six months and that the demand for duty on the basis of classification under Tariff Item No. 48.18 during the period six months prior to the issue of show cause notices were not being challenged. The Tribunal recorded this and then held by its order dated 11th May, 1999 that the extended period of limitation was available.

10. It appears that the Appellants moved an application for setting aside the orders dated 22nd April, 1999 and 11th May, 1999, on the ground that they had not authorized their Counsel to make any concession. That application came to be dismissed by an order dated 27th September, 1999. Civil Appeal Nos. 1535-1540 of 2000 are against these three orders.

11. Civil Appeal No. 3758 of 2001 arises out of adjudication pursuant to a show cause notice dated 29th June, 1993. The demand herein is within the period of limitation. That the product is classifiable under Tariff Item No. 48.18 has been confirmed by the CEGAT by its order dated 22nd February, 2001. It is against this portion of the order that the Appellant

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