The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ordered fresh adjudication in the matter as no inquiry was made about details of imported Malvern Master Sizer to classify under Customs Tariff Act, 1975.
The Appellants, Madhu Silica Pvt Ltd, are aggrieved with the impugned order and have filed the present appeal. The issue involved in the present case is that the appellants imported Malvern Master Sizer, which they sought to be classified under Tariff Heading 90275090, which pertains to instruments & apparatus for physical and chemical analysis. Same was initially sought to be changed by the department to Heading No 90318000 i.e. Other instruments, appliances and machines.
It was further stated that, at this stage when the matter was taken up by them before the Commissioner (Appeals), it came up with third heading, which is 90314900, which pertains to others under heading 9031. The Commissioner finally changed and decided Heading 90314900. And the same was done without affording additional opportunity despite the fact that department had proposed to classify the product under heading 90318000.
A Two-Member Bench comprising Raju, Technical Member and Somesh Arora, Judicial Member observed that “Therefore, while Commissioner (Appeals) is within its powers to confirm the decision or order appealed against or modify the same, but there is an initial requirement that he should make further inquiry as may be necessary and pass such order i.e just and proper.”
“In the present instance, no inquiry it appears was conducted about the product or details and the matter has been decided without opportunity to the appellants. Appellants too are agreeable and seek remand, but with rider of opportunity about correct classification on (even of third head). In view of this, we find that change of heading by the Commissioner (Appeals), without affording opportunity is improper, and same can only be done after conducting proper inquiry and following natural justice” the Bench concluded.
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