1 CEXA NO.126/10. lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.126 OF 2010 Pee Tee Extrusion Products Pvt. Ltd. ... Appellants. versus The Commissioner of Central Excise, Mumbai V ... Respondent. Mr. V Sridharan a/w Mr. Prakash Shah i/by PDS Legal for the Appellants. Mr. Pradeep S Jetly a/w Mr. J B Mishra for the Respondent. CORAM : J P DEVADHAR AND R M SAVANT, JJ. DATED : 01st December 20 10 P.C. Heard the learned counsel for the Appellant and the learned counsel for the Respondent. Perused the Appeal. 2 The Appeal is admitted on the following substantial question of law :- “Whether in the facts and circumstances of the case, the Hon’ble Tribunal was justified in directing the Appellants to deposit Rs. 15,00,000/- under Section 35F of the Act? 3 By consent of the parties, the Appeal is taken up for final hearing and heard. 4 This Appeal is filed by the Appellant against the order passed by the Central Excise, Customs and Service Tax Appellant Tribunal dated 29th July 2010. The Appellant is a company engaged in the manufacture of flexible plastic hollow 2 CEXA NO.126/10. corrugated boards. The dispute in this case is whether the said goods manufactured by the Appellant is classifiable under Tariff Heading 3926.90 or under Tariff Heading 3920.39. The Commissioner of Central Excise, Mumbai-V, by his order dated 27th August 2009 has held that the goods manufactured by the Appellant are classifiable under Tariff Heading 3920.39. Challenging the said order of the Commissioner of Central Excise, the Appellant filed an Appeal before the CESTAT with the Application for Stay. By the impugned order dated 29th July 2010, the CESTAT directed the Appellant to deposit Rs.15,00,000/- inter alia on the ground that the appellant itself has claimed that the classification upheld by the CESTAT in the case of Caprihans India Ltd. vs. Commissioner of Central Excise, Aurangabad reported in 2002 (145) ELT 664 (Tri-Mumbai) which is upheld by the Apex Court is not applicable to the case of the appellant.. 5 It is not possible to endorse the views expressed by the CESTAT. It is not in dispute that the goods manufactured by the appellant are similar to the goods manufactured by Caprihans India Ltd. In the case of Caprihans India Ltd (supra) the Tribunal by its order dated 14/6/2002 held that the goods in question could be classified under Tariff Heading 3916 but not under Tariff Heading 3920.39 as claimed by the assessing officer. That order of the Tribunal has been upheld by the Apex Court. 6 In the present case, the Commissioner of Central Excise passed the Order in Original on 27th August 2009. On that day, the order of the Tribunal in the case of Caprihans India Ltd as well as the order of the Apex Court confirming the said order was also available and it was open to the commissioner to classify the goods under Tariff Heading 3916. However, the Commissioner of Central Excise has chosen to 3 CEXA NO.126/10. classify the goods under Tariff Heading 3920.39. The question before the Tribunal was, whether the Commissioner was justified in classifying the goods under Tariff Heading 3920.39 in spite of the decision of the Tribunal in the case of Caprihans India Ltd. (supra) which is upheld by the Apex Court. In such a case when the issue of classification had attained finality, the Tribunal could not have ordered deposit of Rs. 15,00,000/- merely because the appellant had stated that the observation of the Tribunal in the case of Caprihans India Ltd. (supra) to the effect that the goods in question could be classified under Tariff Heading 3916 is not acceptable to the appellant. As noted earlier, the Commissioner has not classified the goods under Tariff Heading 3916 as observed by the Tribunal in the case of Caprihans India Ltd (Supra). Therefore in the facts of the present case, the Tribunal was not justified in directing pre-deposit of Rs.15,00,000/- when the classification made by the Commissioner was contrary to the binding decision of the Tribunal in the case of Caprihans India Ltd. (Supra). 7 In this view of the matter, the impugned order is quashed and set aside and the CESTAT is directed to hear the appeal of the Appellant on merits without any pre-deposit. This Appeal is disposed of in the above terms with no order as to costs. [R.M.SAVANT, J] [J P DEVADHAR, J]