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2019 (12) TMI 639 - CESTAT AHMEDABADDemand of duty without proper classification of goods in dispute - Manufactured product, Vermax 002 and Vermax 004 - scope of SCN - Chargeable to service tax or not - HELD THAT:- The appellants were paying duty on the said goods till 30/06/2006. However, were simultaneously disputing the leviability of duty. On the advice of the consultant, they stopped paying duty on such goods from 01/07/2006 and started availing exemption. The raw material used by them for the manufacture of the aforesaid articles was co-mingled oil, which was classifiable under heading 2709. A Show Cause Notice was issued to the appellant which sought to confirm the demand of duty without specifying the heading under which the said product Vermax 002 and Vermax 004 are classifiable. The appellants sought the correct classification in their reply to the Order in Original. It is seen that the Show cause notice does not exactly classify the product. In show cause notice, there is no allegation seeking to change the classification claimed by the appellant. There a vague reference to chapter heading 2710 in the chemical examiner’s report but there is nothing in the notice alleging that why the goods could not be classified under heading 2709. The notice simply seeks to appropriate the duty already paid by the appellant under protest. It is seen that in the Show Cause Notice there is no allegation as to why the classification claimed by the appellant viz 2709 should not be changed. And it also does not suggest why the goods should be classified under any particular heading. Thus, it is apparent that the appellants have been rightly pointing out that no demand can be made without classifying the finished products sought to be levied to tax. It is seen from the orders of lower authorities that they have only examined why the product is not classifiable under chapter heading 2709 sought by the appellant but none of them deal with the issue as to where the goods should have been classified or what should be a correct classification of goods. There is no allegation in the show cause notice seeking to change the classification of goods and there are no findings to that effect. Revenue cannot seek to demand duty without first classifying the goods under any particular heading. In any case, the burden of proving of classification lies on Revenue. The entire case of Revenue is that the goods are not classifiable under 2709. The Revenue has failed to establish under which heading goods are classifiable. The appeal of Revenue seeking impose redemption fine for enhancement of penalty is dismissed - decided against Revenue.
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