Shah Textiles Limited vs Union of India (UOI)

M.S. Shah, J.—Heard Mr. Parikh for the petitioner and Mr. Malkan, learned Senior Standing Counsel for the Central Government for the respondents.

What is challenged in this petition under Article 226 of the Constitution is the order dated 24-5-2004 2004 (97) ECC 79 rendered by the Customs, Excise & Service Tax Appellate Tribunal, Mumbai allowing the Revenue's appeal and setting aside the finding of the Commissioner as well as the Assistant Commissioner that "Dyed D/C Book binding cloth" being manufactured by the petitioner-company falls under Chapter Heading 52.06. The Tribunal took the view that the goods will fall under Chapter Heading 5901.10.

At the hearing of this petition, Mr. D.V. Parikh, learned counsel for the petitioner has submitted that apart from the fact that the petitioner-company was represented by its Director who was not well-versed with the law on the subject and, therefore, could not cite several decisions in favour of the petitioner-company, after the hearing took place before the Tribunal on 1-4-2004, the Hon'ble Supreme Court in Commissioner of Central Excise Vs. Susma Textile Pvt. Ltd., has recently taken the view in favour of the assessee that stiffness referred to in Chapter Heading 59.01 has to be of permanent and durable nature, and that as per the material on record the said test is not satisfied in the case of the petitioner's goods and, therefore, they would not fall under Chapter Heading 5901.10 and that both the Assistant Commissioner as well as the Commissioner had rightly held that the goods fall under Chapter Heading 52.06.

In our view, the question whether the petitioner's case would be governed by the decision of the Apex Court in CCE v. Susma Textile Pvt. Ltd. (supra), is not a pure question of law, but it is a mixed question of law and fact which will have to be decided on the basis of the material available before the Tribunal.

Since that decision was not available when the matter was heard before the Tribunal, it would be in the fitness of things if the petitioner-company makes an application for review before the Tribunal and the Tribunal, after hearing both the sides, would go into the question - whether the petitioner's case would be governed by the decision of the Apex Court in CCE v. Susma Textile Pvt. Ltd. (supra) and any other decision which the petitioner's Counsel may like to cite before the Tribunal.

The petition is accordingly disposed of.