H.R. Syiem, Member (T)

1. The Appellate Collector of Central Excise, Calcutta passed three orders in Appeal Nos. 126/WB of J980, dated 24-3-80; 127/WB of 1980, dated 24-3-80 and Nos. 128-129/WB of 1980, dated 24-3-80. The orders were in respect of the action of the lower authorities, who after approving a classification list dated 29-11-1977 for mil) board filed by M/s. Nayek Associates Dist. Burdwan and extending concession to the mill board under Notification No. 70/76-C.E., dated 16-3-76, wanted to modify that approval. The Assistant Collect or of Central Excise, Burdwan approved the concession on 17-2-78. The Central Excise noticed later that caustic soda had been used in the manufacture of the mill board and that this fact had not been disclosed in the classification list. Furthermore, the factory used jute stalk and paddy straw in the manufacture. The Central Excise felt that the mill board was not eligible to the concession under the notification, and therefore proceedings were initiated to modify the classification. By one order dated 11-4-79, the Assistant Collector ordered that the assessment of the mill board should be at 30% ad valorem instead of the concessional rate, after issuing a show cause notice for the proposed modification. A demand was also issued on 15-2-79 for differential duty for the period 29-11-77 to 14-12-78. For the months of April 1979, and May, 1979, the Superintendent of Central Excise, Burdwan Range demanded duty in the F.T. 12. It was these orders that Jed. to the three appellate orders.

2. In Order No. 126/WB of 1980, the Appellate Collector saw no ground in the charge of suppression levelled against the factory by the Assistant collector. He said that it was not correct for the Assistant Collector to review his earlier order in which he had approved the concessional assessment for the mill board. The failure to mention the word chemical would not amount to suppression as it was commonly known that chemicals are necessary ingredients in the manufacture of paper. He cited a judgment of the Supreme Court in the case of Anglo Afgan Agencies v. Union of India which ruled that if a promise is made it cannot be changed by the same person the Appellate Collector accordingly allowed the appeal. In Order No. 127/WB of 1980, the Appellate Collector agreed with the appellants M/s. Navek Paper Board Mills that the Assistant Collector did not have the authority to review his own order. He also found the argument of the appellants on the question of time-bar as far as determination of additional duty by reclassification sustainable. He ordered by setting aside the order in original adding however that the classification approved by the Assistant Collector on 12-2-78 would remain valid till 18-5-79 when the order of the Assistant Collector on reclassification was received by the factory. The last Order Nos. 128-129/WB of 1980 was with respect to the demands raised in the R.T. 12s for the months of April, 1979 and May, 1979. The appellants had claimed that the goods should be classified at the concessional rate as approved by the Assistant Collector on 17-2-78. The Appellate Collector concurred with the submissions of the appellants and' allowed the two appeals.

3 The Appellate Collector said that the Assistant Collector could not review his own order of approving the classification list filed on 29-11-79 by revising the approval to deny the concession under Notification No 70/76 C.E. He set aside the revision of the classification in the first order saying also that the failure to mention the word chemical did not amount to a suppression and that the adjudicating officer was not correct to review his earlier order In the second Order No. 127 and the third Order Nos. 128-129. he set aside the demands because he said the Central Excise authorities could not make these demands since they have no power to review the approval of the classification initially made by the Assistant Collector on 17-2-78. The or