Per Shri V.P. Gulati :

These two appeals involve a common issue and are, therefore, taken up together for disposal. The issue in the appeal relates to the re-classification of the goods and the demand raised for that reason under Section 11A of the Central Excise and Salt Act. The goods were originally assessed under Tariff Heading 8479 and then sought to be subsequently classified under Tariff Heading 8108, 8109 and 8103.

2. The learned Advocate for the appellants has pleaded that without any change in facts or in law or coming to light of any new facts, the authorities have proceeded to revise the classification and this could not be done as held by the Hon'ble Andhra Pradesh High Court in the case of Reckitt Colman reported in 1994 (72) ELT 263. He has pleaded that the Hon'ble High Court in para 19 has held as under :-

19. The second issue in this case relates to the jurisdiction of the respondents to re-classify the goods. In order to understand the powers of the authorities, we have to consider the scheme of the Act and the Rules. Section 3 is the charging section levying duty on all excisable goods manufactured in India and it provides for duty for different classes or descriptions of the excisable goods. Different duties may be imposed under Section 3 (3) in respect of different descriptions of the same goods or intended for sale to different classes of buyers following the normal practice of wholesale trade in such goods. The method of assessment is provided under the rules. Rule 173 provides for the self-assessment procedure. Under Rule 173B, the assessee has to file a list of goods for approval, giving the description of the goods and the chapter heading number and sub-heading number of the Schedule to the Central Excise Tariff Act, 1985, under which such goods fall as well as particulars of the goods and the rate of duty leviable thereon. The Proper Officer has to approve the list with such modifications as may be considered necessary, and determine the duty payable on the goods. Sub-rule (2) provides that all clearances of the goods can be made only after the approval of the list by the proper officer. If the proper officer directs an enquiry to be made, the assessee may avail the procedure by a provisional assessment under Rule 9B. Under Rule 173F, the assessee has to determine the duty payable on the goods and shall not remove the goods until after paying the duty so determined. Under Rule 173G, a monthly return has to be filed showing the value of the goods removed and the duty paid. Under Rule 173-I, the proper officer, on the basis of the information contained in the return filed by the assessee, (shall) assess the duty due on the goods removed and complete the assessment memorandum on the return, and send a copy of the same to the assessee. He can make certain adjustments and determine the net shortfall in the duty payable. Section 11A provides that when any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, call upon the assessee for making goods the shortfall. However, in case there is a fraud or misrepresentation, the time limit will be five years instead of six months. The relevant date is defined as the date of monthly return in case where monthly return is filed. In this scheme of self-assessment procedure, the contention of the Revenue is that in respect of every monthly return there is a fresh list and even though the earlier returns had been accepted, nothing precludes the proper officer from coming to a different conclusion as there is no estoppel against Statute and the earlier assessments under Rule 173-I will not operate as res judicata. The alternative contention is that even if the monthly return is accepted, Section 11A grants the jurisdiction to re-open the same within six months from that monthly return and within five years, if there is any fraud or misrepresenta