Re-classification of goods and duty demand based on uncommunicated test reports violate principles of natural justice, rendering such demands legally unsustainable.

1. The above three appeals have been filed by the appellant under S.35L(b) of the Central Excise Act , 1944.

2. Since the three appeals arise out of the common order dated 21/05/2010 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai and are inter - related with parties being the same, those were heard together and are being disposed of by this common judgment and order.

3. Be it stated that by the judgment and order dated 21/05/2010 (impugned order), Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai ('CESTAT' hereinafter) disposed of appeal Nos. E / 2380/06 - MUM, E / 3816/03 - MUM and E / 40/02 - NB - C. It may be mentioned that appeal No. E / 2380/06 - MUM was filed by the respondent whereas the other two appeals were filed by the appellant.

4. By the impugned order dated 21/05/2010, CESTAT dismissed the appeals filed by the appellant and partly allowed the appeal filed by the respondent. The differential duty demand in respect of the two products Benzene and Toluene for the period September, 1990 to December, 1992 amounting to Rs.1,97,17,015.00 and for the period January and February, 1993 of Rs.18,16,304.00 have been upheld. In respect of the aforesaid two products, CESTAT has also held that contents of the test reports on the basis of which tariff classification of the above two products were changed leading to higher duty and hence differential duty were duly communicated to the appellant. CESTAT has also held that the assessments covering the said period were not provisional except for the months of January and February, 1993.

5. This Court vide the order dated 03/01/2011 had condoned the delay in filing of the appeals and had issued notice.

6. Relevant facts may be briefly noted.

7. Appellant is a manufacturer of excisable goods falling under Chap.27, Chap.28, Chap.29, Chap.32, Chap.38 and Chap.39 of the Central Excise Tariff Act, 1985 (briefly 'the Tariff Act' hereinafter)

8. Appellant had filed classification list bearing No. 1/89-90 effective from 03/11/1989 for various excisable products manufactured by it in terms of R.173B of the Central Excise Rules , 1944 (referred to hereinafter as 'the Central Excise Rules ')
8.1. In the said classification list, appellant had classified the various products manufactured by it as under:
(i) Dripolene 'C' - chapter sub-heading 2713.90 and claimed concessional rate of duty under Notification No. 75/84.
(ii) Cyclo Hydro Carbons viz. (a) BTX and (b) BVR - chapter sub-heading 2902.00
(iii) Benzene and Toluene - chapter sub-heading 2902.00 claiming exemption under various notifications
(iv) Ethylene and Propylene - chapter sub-heading 2901.90 claiming exemption under various notifications.
8.2. The said classification list filed by the appellant was approved by the Assistant Collector of Central Excise, Division - I, Mumbai II Collectorate ('Assistant Collector' hereinafter) on 26/04/1990.

9. On 04/10/1990, department drew samples of Benzene and Toluene from the appellant for chemical testing. The chemical analysis as indicated vide the Deputy Chief Chemist's letter dated 29/01/1991 report