IMPORTANT POINT
The adjudicating authority has to point out defects if any to the assessee within two days of application. Thereafter the application has to be disposed of within three months failing which assessee shall be entitled to interest after three months of the application.

JUDGMENT :

Dipak Misra, J.

The respondent, M/s. Hamdard (Waqf) Laboratories, is engaged in the business of manufacture and sale of various items including Rooh Afza which is a sweetened non-alcoholic beverage, and the respondent treated it to have been classified under the sub-heading 2201.90 of the Schedule to the Central Excise Tariff Act, 1986 (for short, 'the Tariff Act'), but the Revenue did not accept the classification claimed by the assessee-respondent on the foundation that it was classifiable under the sub-heading 2107.91 of the Tariff Act.

2. Because of the cavil relating to classification, steps were taken for recovery of the differential duty and keeping in view the demands made, the respondent-manufacturer started paying the duty as demanded by the concerned authority. Be it stated, the initial adjudicator, that is, the Assistant Commissioner of Central Excise, did not accept the stand of the assessee. The said grievance compelled the respondent to prefer an appeal before the Commissioner (Appeals) who negatived the stand of the assessee. Being grieved the assessee preferred an appeal before the Central, Excise and Service Tax Appellate Tribunal (for short, 'the tribunal'), which, agreed with the view expressed by the fora below and consequently dismissed the appeal.

3. The decision rendered by the tribunal, was called in question by the assessee in Civil Appeal No. 7766 of 1995. The two-Judge Bench in Hamdard (Wakf) Laboratories v. Collector of Central Excise, Meerut, (1999) 6 SCC 617 adverted to the issue of classification pertaining to the product, namely, Sharbat Rooh Afza and posed the question whether the said "Sharbat" was within the tariff heading 2201.90 as contended by the assessee or under heading 2107.91 as the excise authorities would maintain and after adverting to various aspects, accepted the stand of the assessee that it is a non-alcoholic beverage and repelled the stand of the Revenue and resultantly allowed the appeal.

4. Be it mentioned here that this Court in its judgment dated 4th August, 1999 had stated that it falls within the term of heading 2201.90 and accordingly, set aside the order passed by the tribunal and further directed for consequential relief to follow. For the sake of completeness, paragraphs 7 and 8 of the said decision are extracted below:-

"7. The Tribunal would also appear to have concluded that the said sharbat was not a beverage but a preparation for the same. The fact that these tablespoonfuls of the said sharbat have to be added to a glass of water to make it drinkable does not, in our view, make the said sharbat not a beverage but a preparation for a beverage. Were that so, many beverages which are squash would not be beverages [See for example para 5 of this Court's judgment in the case of Parle Exports (P) Ltd. (Northern Industries v. CCE (1988) 37 ELT 229 (Tribunal) and para 12 et seq. Of the Tribunal's judgment in the case of Northland Industries (From the judgment and order dated 4.5.1995 of the National Consumer Disputes Redressal Commission, New Delhi in F.A. No.65 of 1994]. It seems to us that the phrase "preparations for lemonades or other beverages" in clause (j) of Note 5 of Chapter 21 was intended to refer to the industrial concentrates from which aerated water and similar drinks are mass produced and not to preparations for domestic use like the said sharbat.

8. It was necessary for the respondents to have shown, having regard to the terminology of Heading 21.07, that the said sharbat was "not elsewhere specified or included". That, in our view, was not done. In fact, as we see it, it falls within the terms of Heading 2202.90."

At this juncture, it is necessary to state that initially when the judgment was pronounced on 04.08.1999, paragraph 8 mentioned "within the terms of heading 2201.90" and the same has been corrected by a corrigendum. We shall advert to the factum of rectification and its impact at a later stage.

5. After the judgment was pronounced, the resp