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2010 (8) TMI 348 - AT - Central ExciseBakery improvers – Classification – Reliance on HSN - rival entries considered by the lower authority are Heading 1905.90 and Heading 2108.99 - counsel for the appellant has argued that Heading 19.05 of the CETA schedule was not aligned with the corresponding HSN Heading - Heading 21.08 of the CETA schedule was not aligned with Heading 21.06 of the HSN as claimed by the Revenue – Held that: - Classification under HSN could not be said to be aligned/pari material with Tariff, and reliance on HSN Explanatory notes to classify goods under heading 21.08 was not proper Res Jdicata - The fact that the Pune Assistant Commissioner’s order was not reviewed by the department will not per se preclude the Revenue from revising the classification of similar goods for another period on the strength of independent evidence. Even otherwise, the Pune Assistant Commissioner’s order of classification cannot bind this Tribunal. Alternative classification - The assessee classified the goods under SH 1905.90, the Revenue wanted to classify them under SH 2108.99 and the assessee now comes up with an alternative proposal to classify the goods under Chapters 11 and 15. This plea of the appellant cannot be entertained in view of the above ruling of the apex court in Warner Hindustan Ltd. v Collector, (1999 -TMI - 45233 - SUPREME COURT OF INDIA) Extended period of limitation - That decision of the Assistant Commissioner was rendered as early as on30-06-2000. Naturally, the appellant was emboldened to classify their products under the same Heading and they did so. They filed periodical returns showing payment of duty at ‘nil’ rate as applicable to SH 1905.90 during the period of dispute. There was no whisper against this self-assessment of the appellant, in the departmental circles. In this scenario, the plea of bona fide belief in favour of classification under Heading 19.05 appears to be cogent and valid. Therefore, it cannot be said that the appellant suppressed any material fact before the department with intent to evade payment of duty. The extended period of limitation, therefore, is not invokable in this case.
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