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2015 (9) TMI 983 - AT - Central ExciseReversal of CENVAT Credit - Re-classification of goods - Penalty u/s 11AC - Held that:- It is not under dispute that the polymer imported are classifiable under Chapter 39 and the duty is being paid accordingly. Further, the process being undertaken in the factory is only repacking of the goods in smaller container and putting labels. Thus there is no change in the characteristic of the imported goods or the use of the imported goods and thus the process will not amount to manufacture. One has to consider that the goods have been cleared as such. The importer is required to reverse/repay the Cenvat credit taken at the time of importation. However, this was not done. It is also not in dispute in the present case that the Cenvat Credit taken at the time of importation was much higher than the duty paid on the repacked goods and cleared as chemical additives for lubricating oil. Nobody can make out that the credit on inputs taken are falling under Chapter 39. Further, while clearing the goods no description is mentioned and the classification of the goods mentioned is 38. It is not possible from the above description for any human being that the inputs have been cleared as such and the classification of the input have been changed. We do not see any reason for the appellant to change the classification. To our mind, the classification has been changed only to ensure that they are in a position to take higher credit and pay lower duty. In our view, there is clear cut suppression of fact and wilful misstatement and in view of the fact and circumstances, extended period of limitation is correctly invoked. Classification of the product has been changed without any manufacturing process. This fact was in their knowledge and therefore they were aware that the goods are liable to confiscation and they were also concerned with the said goods and in view of the said position, the penalty is imposable on them - However, penalty is reduced - Decided partly in favour of assessee.
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