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2021 (8) TMI 114 - CESTAT NEW DELHIDemand of National Calamity Contingent Duty (NCCD) - classification of goods - heavier hydrocarbons - intermediate product in the manufacture of Mixed Fuel Oil/ Naphtha or not - burden to prove - Board Circular dated 09.01.2004 - extended period of limitation - interest - penalty - HELD THAT:- In the present case, the product described in the show cause notices is ‘heavier hydrocarbons’ which is an intermediate product in the production of Naphtha. The Department has classified it under Heading 2709, which classification has not been disputed by the respondent in this Excise Appeal filed by the Department. It is, therefore, clear that a contrary stand has been taken by the Department in the show cause notices, which were the subject matter of the earlier Excise Appeal and the show cause notices which are the subject matter of the present Excise Appeal. The Department had previously issued multiple show cause notices to the respondent alleging that the product was classifiable as ‘NGL’ under Tariff Item No. 2710 12 20 of the Tariff Act. However, the present show cause notices have been issued by the Department claiming classification of ‘NGL’ under Chapter Heading No. 2709 of the Tariff Act. It is, therefore, not possible to accept the contention of the learned Authorized Representative appearing for the Deparmtment that the product should be classified as NGL under the same Heading as was classified in the order of the Tribunal passed in the earlier Excise Appeal. The show cause notices, in the present Excise Appeal, proceed on the footing that the heavier hydrocarbons (gas condensate) should be classified under Heading 2709 of the Tariff Act. The Department cannot, in this Excise Appeal, be permitted to take a stand that is contrary to the stand taken in the show cause notices. The aforesaid discussion leads to the inevitable conclusion that the product ‘heavier hydrocarbons’ described as ‘gas condensate’ is classifiable under Heading 2709 but NCCD would not be leviable because the product is not marketable. Extended period of limitation - suppression of facts or not - HELD THAT:- From the reply filed by the respondent in response to the show cause notices it is seen that the contention that is now being raised in regard to the extended period of limitation was not raised by the respondent, though the show cause notices had invoked the extended period of limitation - It would, therefore, not be appropriate to examine the contentions now sought to be raised in this appeal, more particularly when the respondent has not filed any cross appeal for supporting the order of the Commissioner on this ground. Penalty and Interest - HELD THAT:- Once it is held that the demand cannot be sustained, the imposition of penalty or recovery of interest cannot also be sustained. Appeal dismissed.
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