Page 269 - ELT_1_1st April 2020_Vol 372_Part

2020 ] KAIPAN PAN MASALA PVT. LTD. v. COMMR. OF CGST, EX. AND CUS., BHOPAL 155

the product in question has to be treated as per the description of the product for
the purpose of classification as CT or flavoured chewing tobacco. Ld. adjudicat-
ing authority although agrees that issue has been decided in case of Flaxes-N-
Flavours, which supports the appellants, however, did not follow the same on the
ground that the appeal has been filed by the department against this order. The
said order has been reported in 2016 (331) E.L.T. A35 (S.C.). In the said decision
of Flaxes-N-Flavour, the Hon’ble Tribunal has held that the product has to be clas-
sified based upon the description of the product given by the manufacturer on
the pouches as well as on the basis of common parlance established test. The Tri-
bunal observed that the flavoured chewing tobacco is sold in the market as
Chewing Tobacco, and therefore, the product is classifiable under 2403 99 10. The
appellant has also declared the description of the product as “Chewing tobacco
premium” and the same is being marketed as chewing tobacco only. Therefore,
we find that the goods would be appropriately classifying as Chewing Tobacco
under Heading 24 03 99 10 of the Central Excise Tariff. The filing of the appeal
before the Supreme Court will not render the findings of the Tribunal in operat-
ing. We place reliance on the decision of CCE v. Mutha Foundaries Pvt. Ltd. [2017
(347) E.L.T. (411) Bom.], wherein it is held that an appeal against the order of re-
fund is pending before a higher forum, does not mean that the order is incapable
of implementation and enforcement. If the order is not stayed then the enforce-
ment is possible. Similar view was taken by Gujarat High Court in case of Gujarat
Narmada Valley Fertilizers Co. Limited [2014 (306) E.L.T. 315 (Guj.)]. Supreme Court
in case of State of Rajasthan v. R.S. Sharma and Company [1998 (4) SCC (353)] also
has held that pendency of issue before Constitution Bench would not postpone
the decision by Supreme Court. In view of aforestated observations by the Su-
preme Court and High Courts, Ld. Adjudicating Authority was bound to follow
the ratio laid down by the Hon’ble Tribunal in case of Flaxes-N-Flavours (supra),
therefore, the impugned order passed by the Commissioner is not sustainable.
21. In regard to the order passed by the Commissioner (Appeals) at
paragraph ‘8’ in respect of Kay Pan Masala, Bhopal above we find that the
Commissioner (Appeals) has not passed any order on merits of the case, and
therefore, the same is non-speaking. Merely, saying that a separate show cause
notice has been issued by the Commissioner regarding classification of goods
based on the test reports, as above is not appropriate and he should have pass
the order as per various ground contained in the appeal memorandum. The
Commissioner (Appeals) has treated part for the order as an administrative order
regarding the capacity determination which is also illegal incorrect. It was in-
cumbent upon the Commissioner (Appeals) to decide the entire issue contested
before him in appeal as per the provisions contained in Section 35 of the Act.
Therefore, the order passed by the Commissioner (Appeals) in respect of these
cases is not sustainable and liable to be set aside.
22. Accordingly, we allow all these appeals filed by the appellant with
consequential benefit if any.
(Operative part pronounced in open Court)

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EXCISE LAW TIMES  1st April 2020  317