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2013 (11) TMI 1387 - AT - Central ExciseCorrect classification of Nestea Tea premix – Under Heading 2108.99 OR Heading 2101.20 of CETA – Held that:- It cannot be accepted that the appellant suppressed the ingredients with an intent to evade payment of duty - There is no elaboration in the show cause notice indicating as to which particular ingredients, which was relevant for the purpose of classification, does not stand disclosed by the appellant in the said flow chart or manufacturing process - no initiative was taken by the Revenue to propose change in the classification of pre-mix tea and to raise differential duty demand - There is no explanation as to why when Revenue was aware of the facts, the show cause notice was issued only 3.7.2008, covering the period June, 2003 to February, 2008. The appellant filed proper classification list, and they were also regularly filing monthly ER-1 returns showing the manufacturing and clearance of the pre-mix tea, by adopting classification under heading 2108.99 - No objection was ever raised by the Revenue - When the Revenue was raising the show cause notice in respect of pre-mix coffee, they could have or they should have raised show cause notice in respect of pre-mix tea also - It is well settled law that claiming classification under a particular heading does not amount to suppression or mis-statement with intent to evade payment of duty - the demand was beyond the period of limitation is not sustainable - the demand was confirmed as being within the period of limitation which demand is already quantified and deposited by them alongwith interest - in the absence of any malafide on the part of the assessee, it was not fit to impose any penalty – Decided partly in favour of Assessee.
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