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2016 (5) TMI 1066 - AT - Central ExciseDemand of duty alongwith interest - Re-classification of certain mis-classified lubricating oils and denial of exemption notification - No SCN issued for demanding excise duty under Section 11 A of Central Excise Act - Held that:- the SCN is vague and issued for re-classification of the goods and no demand was raised. Whereas, under Section 11 A, it is mandatory for any recovery of duty not paid or short paid. There shall be a SCN demanding the recovery of duty under Section 11 A. Here, under no stretch of imagination, the alleged SCN can be construed as SCN issued under Section 11 A as the said SCN was primarily issued for re-classifying and denying exemption notification as per the classification list filed by the appellant under the erstwhile Rules. The adjudicating authority proposed to change the classification and denying exemption, there should be a clear demand issued under Section 11 A. Whereas, in the present case, neither SCN says so, on the contrary, the adjudicating authority after re-classifying the goods and denying exemption, straightaway confirmed the demand under Section 11 A. Therefore, by respectfully, following the Apex Court decisions in the case of Metal Forgings Vs. UOI [2002 (11) TMI 90 - SUPREME COURT OF INDIA] and in the case of Gujarat Machinery Manufactures Ltd. Vs. CCE, Baroda [1996 (9) TMI 121 - SUPREME COURT OF INDIA], we find there is no demand in the SCN issued under Section 11 A for recovery or any short levy of duty on account of re-classification. The demand is not sustainable and is set aside. - Decided in favour of appellant
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