By TIOL News Service

MUMBAI, MAY 12, 2017: THE Tribunal in its order dated 27.8.2004 held thus -

"3. After considering the submissions and the admitted position of the use of this disputed entity ‘Capsule Loading Machine' to be functioning in tandem and specially designed for such use ancillary to ‘capsule filling machine', applying note 2(b) to Section XV for parts & components and the disputed machine is not to found to have an independent function than the capsule filling machine, no merits are found to upset its classification from 8422.90. As regards the incorrect calculations, the matter is to be remitted back to the Dy. Commissioner to hear the appellants and rework out the calculations of duty demands . Thereafter the duty demands should be altered, if required. The learned advocate has given up the other ground of demand being prospective only. Appeal is therefore to be partially allowed as regards re-quantification of demands.

4. Appeal No. 849/99, 850/99, 851/99, 852/99 of same assessee has the following additional items -

…

… These appeals are also to be partially allowed for only re-quantification of duty demands and classification under heading 8422.90 ."

The Appellant agreed with above decision of Tribunal.

Pursuant thereto, an order was passed by the Dy. Commissioner.

However, the Commissioner(A) disturbed the finding of the adjudicating authority who followed the Tribunal's decision to quantity the demand.

Revenue is, therefore, in appeal before the CESTAT and submits that the Commissioner (Appeals) created a new jurisdiction for himself which is not permitted by law since the matter has been resolved by the Tribunal. Inasmuch as he decided the classification again to grant benefit of Notification No. 51/93-CE dated 28.2.1993.

The Bench, therefore, observed -

"…Law is well settled that the appellate authority is not expected to create jurisdiction for himself to decide the controversy which was not before him. Therefore to the extent learned Commissioner's view is contrary to the direction of the Tribunal, that calls for set aside. Computation of the tax liability should have been done holding that the goods in question were parts and components as has been stated in para 3 of the Tribunal's order, determining the demand. He having acted contrarily in law, adjudication order is restored and the order of learned Commissioner (Appeals) is set aside…."

The Revenue's appeal was allowed.

(See 2017-TIOL-1595-CESTAT-MUM)