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2011 (5) TMI 865 - CESTAT MUMBAIClassification of goods - Classification under CSH 4901.90 or CSH 4819.19 - Bags and cartons - Printed cartons and bags – Held that:- They are classifiable under sub-heading 4819.19 of Central Excise Tariff and not under sub-heading 4901.90 - Such bags could be open on one side and need not be closed on all four sides - Folders also are normally open on three sides - Inclusion of terms like bags, letter boards and similar articles in Heading under 48.19 discloses that entries thereunder are not confined to ‘containers’ which are enclosed on all sides and they can include containers which are open on one side or more. - Being so, the decision of the Apex Court in G. Claridge & Company Ltd.’s case [1991 (2) TMI 112 - SUPREME COURT OF INDIA] can be of no help to the appellants in the matter in hand. - The ground that the product being not enclosed on all four sides, it cannot be container within the meaning of the said expression under the said Tariff Entry, therefore, cannot be accepted. - Decided against the assessee. Scope of Show cause notice - traversing beyond the scope of the show cause notice – Assessee contends that that the case pleaded thereunder was to the effect that the folders manufactured by the appellants were part of cartons whereas the findings arrived at by the authorities below are that the folders fall within the ambit of the word ‘container’ – Held that:- it is difficult to accept the contention that merely by using the word at one place as carton in the show cause notice, the authorities can be said to have traversed beyond the scope of show cause notice for having arrived at the finding that the product in question falls within the ambit of the word ‘container’ - Adjudicating authority cannot be said to have traversed beyond scope of show cause notice for finding that impugned product fell within the ambit of ‘container’. Bar of limitation - Bona fide belief – Suppression of facts - Held that:- a specific defence was raised in reply to the show cause notice that pursuant to the Board’s instructions dated 2-9-1986 and referring to the packing materials of various other products, the appellants were justified in not paying the duty in respect of the said product. The said averments apparently disclose that the appellants consciously took the decision not to pay duty in relation to the said product on the ground that it cannot be subjected to the payment of duty. Once the assessee’s consciously decides to exclude the product from being liable to the payment of duty, the question of bona fide belief cannot arise. Imposition of Penalty – Malafide intention - Held that:- Merely because clerk was employee of assessee firm which evaded duty and even though had necessary information about same, it cannot be said that he too had intention to connive with owner of firm to evade duty - Employee cannot deny instructions of owner of firm to prepare necessary records with intent to evade duty - In that case, there must be some additional material which could reveal intention of such employee in assisting the firm whereby it could be disclosed that he had personal interest in availing some gain from owner in evasion of duty – However, Assessee found guilty of suppression of relevant facts for invocation of extended period - In such case, imposition of penalty is unavoidable - Decided against assesse.
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