Page 195 - ELT_1_1st April 2020_Vol 372_Part

2020 ] SHREE FLAVOURS LLP v. COMMISSIONER OF CENTRAL EXCISE, DELHI 81

dated 25-4-2018. In the impugned order the demand of Customs duty was con-
firmed on the issue of classification of the goods namely Encod-
er/Multiplexer/Modulator that whether the said goods are classifiable under
Customs Tariff Heading 8517 as claimed by the assessee or under CTH 8528 as
claimed by the Revenue. In the same impugned order, demand for the extended
period was set-aside by the Adjudicating Authority. The present appeal is
against the said setting aside of the demand on time-bar.
2. Shri T.G. Rathod, Ld. Joint Commissioner (AR) appearing on behalf
of the Revenue reiterates the grounds of appeal.
3. Shri H.D. Dave, Ld. Counsel appearing on behalf of the respondent,
at the outset submits that the preliminary issue of classification in the respond-
ent’s appeal has been decided in their favour vide order No. A/12699/2018, dat-
ed 3-12-2018, therefore, on the merit itself the appeal of the Revenue does not
survive.
4. We have carefully considered the submissions made by both the
sides and perused the record. We find that in the very same impugned order, the
Adjudicating Authority classified the goods under CTH 8528 and confirmed the
demand for the normal period but set-aside the demand for the extended period.
The respondent filed Appeal No. C/11809/2018-DB which has been decided on
merit vide Final Order No. A/12699/2018, dated 3-12-2018 whereby the classifi-
cation of the goods was held classified under CTH 8517 and demand confirmed
by the Adjudicating Authority was set-aside and the said appeal was allowed.
The present appeal of the Revenue is also against the same impugned order and
is only against setting aside of demand for the extended period. Since, on merits
the appeal has been decided by this Tribunal vide order dated 3-12-2018 in fa-
vour of the assessee, the appeal of the Revenue does not survive. Therefore, we
need not to go into the issue on limitation raised in the present appeal. Accord-
ingly, the appeal filed by the Revenue is dismissed.
5. Miscellaneous Application and Cross Objection also stands disposed
of accordingly.
(Order pronounced in the open Court on 17-1-2019)
_______

2020 (372) E.L.T. 81 (Tri. - Del.)
IN THE CESTAT, PRINCIPAL BENCH, NEW DELHI

S/Shri Anil Choudhary, Member (J) and Bijay Kumar, Member (T)
SHREE FLAVOURS LLP
Versus
COMMISSIONER OF CENTRAL EXCISE, DELHI

Final Order Nos. 53520-53521/2018, dated 28-11-2018 in Appeal Nos. E/50099 &
50245/2018-DB
1
Refund - Cenvat credit lying unutilized in books of account of tobacco
manufacturer who closed his business and surrendered Central Excise registra-
________________________________________________________________________
1 Appeal against this order was admitted for consideration by Delhi High Court in 2020 (372)
E.L.T. A21 (Bom.).
EXCISE LAW TIMES  1st April 2020  243