2019 (1) TMI 234 – CESTAT NEW DELHI – TMI – Maintainability of appeal – Process amounting to manufacture or not – classification of such products – issue pending adjudication before higher forum – Held that:- Once the controversy is pending adjudication before the highest forum of the country, there seems no reason to have adjudication on merits in these Appeals. Resultantly, four of the Appeals herein are hereby adjourned sine die so as to follow the judicial discipline to avoid conflict of opinion and also to save parties from unnecessary expenditure of time and money. – Excise Appeal No. E/52128/2015, E/53164/2015, E/50094/2016, E/52286/2016 [DB] – IO/E/91/2018-EX[DB] – Dated:- 15-10-2018 – MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Amit Jain, Advocate Present for the Respondent: Mr. R.K. Mishra, DR ORDER PER: RACHNA GUPTA Present Order deals with the 4 (four) Appeals with the following details: Appeals No. E/52286/201
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sing pictures, certificates and momentos having gold plated nickel foils inside in different sizes of frames (acrylic, wood, glass, etc). They were also involved in processing desktop clocks for fixing the foils as were prepared by the watch manufacturers onto the watch dial. Department on the basis of intelligence gathered, alleged that the appellants are engaged in manufacture and in clandestine removal of the aforementioned goods which were excisable. A search was conducted by the officers of anti evasion of Central Excise Commissionerate in the premises of the appellant on 10.10.2003. It is thereafter that the Show Cause Notices as mentioned above were served upon the appellant for the respective period and the respective demand. Those demands have partly been confirmed. The major part of the said demand has been dropped vide the respective order as already mentioned above. Being aggrieved of the demand confirmed, the Appeals in hand have been filed. 3. We have heard Mr. Amit Jain,
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s till date is mentioned to be pending. The present four Appeals are therefore prayed to be adjourned sine die till the outcome of the Hon ble Apex Court is received. The learned Counsel has relied upon in the case of Mahavir Exports vs. Union of India – 2016 (332) ELT 208 (Guj.) and Union of India vs. Indian Leads Private Limited – 1997 (92) ELT 306 (S.C.) to impress upon that when the appeal of the party is admitted by the Hon ble Apex Court. Petition need to be adjourned sine die till decision of the Apex Court. 5. In addition, ld. Counsel also objected the impugned SCN as being barred by time for want of any evidence for alleged intent of tax evasion. 6. Ld. DR though has conceded for the admissibility of the Appeal before the Hon ble Apex Court and that no outcome as yet. But has impressed upon that the impugned goods are otherwise excisable and the activity of the appellant amounts to manufacture. It is also impressed upon that two out of four of these appeals are the subject mat
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mmon Order-in-Original dated 28.04.2005 confirming the activity to be that of manufacture for framed pictures and Desktop cloks (as above). However, framed pictures were classified under 4901 will NIL duty. Thus, demand thereof was dropped and demand of ₹ 1,23,774/- only was confirmed with penalty of ₹ 25,000/-. Still being aggrieved, appeal before this Tribunal was filed. Department also filed appeal against dropping. Both these appeals were decided vide F.O. No. 611-614/2010 dated 13.08.2010 reported as 2010 (257..) ELT 471 (Del.) as has also been conceded by the parties. Vide the said FO appeal of assessee was rejected and that of department was partly allowed, confirming the activity as manufacture (except for other articles ) and classifying framed pictures under Chapter 8306 and Desktop clocks under Chapter 9102. Being aggrieved of confirmation of entire demand, Civil Appeal No.9478-9479/2010 was preferred before Hon ble Supreme Court (as conceded by both the parties)
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ve on the same Show Cause Notices. Thus, both these Appeals with remaining two appeals being for the subsequent period are maintainable. Since, the issue being common for remaining two appeals i.e. E/52128/2015 & E/53164/2015 and the fact being that the said prior two appeals on same issue have already been admitted by Hon ble Apex Court. It is an admitted fact that no final outcome has yet come. 11. In the given circumstances, once the controversy is pending adjudication before the highest forum of the country, there seems no reason to have adjudication on merits in these Appeals. Resultantly, four of the Appeals herein are hereby adjourned sine die so as to follow the judicial discipline to avoid conflict of opinion and also to save parties from unnecessary expenditure of time and money. It is otherwise legal, proper and also pragmatic to grant the request to block the proceedings and to adjourn the matter awaiting the decision of the Supreme Court. The parties herein are however
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