TMI Blog2018 (12) TMI 1576X X X X Extracts X X X X X X X X Extracts X X X X ..... emselves has accepted the merit classification under chapter heading 1704.90 as sugar confectionary, in that circumstances, the show cause notice cannot be issued for the earlier period and the show cause notice can be issued for prospective period. Appeal allowed - decided in favor of appellant. - E/3546/2010-EX[DB] - FINAL ORDER NO.72935/2018 - Dated:- 27-12-2018 - SHRI ASHOK JINDAL, MEMBER(JUDICIAL) And SHRI ANIL G. SHAKKARWAR, MEMBER(TECHNICAL) Shri B.L. Narasimhan (Advocate) Shri Ayush Agarwal (Advocate) for the Appellant (s) Shri Pawan Kumar Singh (Supdt.) (A.R.) for the Revenue ORDER Per Ashok Jindal: The appellant is engaged in the manufacture of various products. The dispute before us with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation under heading 1704.90 vide Order-in-Original No.49/GZB-II/99. The said order was challenged before the learned Commissioner(Appeals), who confirmed the order of the adjudicating authority vide order dated 16.01.2003 holding that the Hajmola Candy manufactured by Ghaziabad unit have merit classification under chapter heading 1704.90. The said order was not challenged by either of the sides and attained finality and appellants started classifying their product under heading 1704.90 as sugar confectionary w.e.f. 01.03.2003. Thereafter another show cause notice which is in question was issued on 10.10.2005 for the period September 2004 to August 2005 proposing the classification of Hajmola Candy under chapter 3003.39 for the period Septe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions made by both the sides fact of the case are not in dispute that the merit classification of Hajmola Candy in question is under chapter heading 3003.90 of Central Excise Tariff Act, 1985 as Ayurvedic Medicine, but while finalizing the assessment for the appellant the learned Commissioner(Appeals) vide its order dated 16.01.2003 held merit classification under chapter heading 1704.90 as against claim of the appellant under chapter 30 and the said order of the learned Commissioner(Appeals) was not challenged by either of the sides. Only on 10.10.2005, a show cause notice was issued to classify the product Hajmola Candy for the period September 2009 to August 2005 under chapter heading 3003.90 of Central Excise Tariff Act, 1985 as Ayurv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay in the case of Eco Valley Farms Foods Ltd. (supra) we held that as Revenue themselves has accepted the merit classification under chapter heading 1704.90 as sugar confectionary, in that circumstances, the show cause notice cannot be issued for the earlier period and the show cause notice can be issued for prospective period. 8. We further find that the classification as approved by the learned Commissioner(Appeals) vide its order dated 16.01.2003 has attained finality and not been challenged, in that circumstances, in the light of the decision of the Hon ble High Court of Gauhati in the case of Jellalpore Tea Estate (supra), the show cause notice is not sustainable. 9. In view of the above observations, we set aside the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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