1. This appeal is against the judgment dated 19-11-1999 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). The respondents have been served but have remained absent. This appeal has, therefore, been set down for hearing ex parte as against the Respondents. On seizure of the goods at various places and on the basis of visit by the officers, the show case notice was issued to the Respondents claiming differential duty on glass cleared by the Respondents as it was found that in the classification list it was shown that the glass cleared and sold by the Re-
spondents was of a particular thickness whereas what was actually cleared and sold was glass of a greater thickness. The thicker glass fell into a different Tariff item and higher duty was payable on it. Therefore, differential duty and penalty were claimed.
2. The Collector confirmed the duty and penalty. CEGAT also held on all points in favour of the Department. However, CEGAT felt constrained by the Constitution Bench Judgment of this Court in the case of Collector of Central Excise, Baroda v. Cotspun Ltd., . In this case, it is held that once there is an approved classification list, it remains effective till the correctness of that list is challenged by a show cause notice. It has been held that any duty levied on the basis of such list, preceding the show cause notice would be the correct duty and cannot be considered to be a short-levied one. CEGAT held that in view of this decision unless, till the correctness of the classification list was challenged by a show cause notice the demand for differential duty and penalty could not be justified. It must be mentioned that after this judgment by the Finance Act, 2000, Section 11A has ben amended. This amendment effectually negates the principle laid dowry in Cotspun's case. This Court in the case of Easland Combines, Coimbatore v. The Collector of Central Excise, Coimbatore, has held, on the basis of amended Section 11A that differential duty could be demanded. We are informed, across the Bar, that the correctness of the decision in M/s. Easland Combines case has been doubted by another two Judge Bench of this Court in Civil Appeal No. 7868 of 1995. We are told that the question has been referred to a larger Bench.
3. In our view, it is not necessary to tag this case with Civil Appeal No. 7868 of 1995 as on facts of this case the judgment in Cotspun Ltd. (supra) has no application. Cotspun's case merely lays down that so long as the classification list is enforced, the duty would have to be levied as per the price disclosed in that list. That case dealt with the duty on NES yarn in respect of which a classification list had been filed. The differential duty and penalty were claimed on NES yarn only. Thus, what Cotspun's case lays down is that so far as classification list subsists the differential duty cannot be claimed on the same product. In the present case, what was being cleared is not the product which has been shown in the classification list. A different product, in respect of which no classification list had been filed, was being cleared and sold. Therefore, the principle laid down in Cotspun's case have no application. As both the Collector and the Tribunal have found on all points in favour of the Department and as no appeal has been filed by the Respondents we hold that the final conclusion of CEGAT based on totspun's case is wrong and cannot be sustained. On the findings given by the Tribunal, the demand is justified. We, therefore, set aside the impugned judgment and confirm the order of the Collector.
4. The appeal stands disposed of accordingly.
5. There shall be no order as to costs.
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