2018 (6) TMI 248 - AT - Central Excise

Classification of goods meant for Construction Industry - Ready Mix (Dry Mix) manufactured by the respondents under the brand name Roofit mix - Whether classified under Chapter Heading 2505.00 of the First Schedule to the Central Excise Act, 1985 or under under CETH 32149010? - The assessee has claimed classification of the impugned product under CETH 2505 prior to 1.3.2005 and CETH 2520.00 w.e.f. 1.3.2005 - time limitation - penalties - Held that - The impugned products are used as first layer in irregular brick works, first layer plastering in regular brick works etc. From the facts on record, it is not disputed that the ingredients that go into the impugned product are graded river sand, portland cement, white cement and lime stone powder in specific proportions along with some additions for water retention and crack free nature. Evidently, this mixture does not have a basis of calcium sulphate and hence it could not have come within the fold of CETA classification 2505.00 in the erstwhile Central Excise Tariff prior to 1.3.2005 - For the period w.e.f. 1.3.2005, corresponding CETH 2520 seeks to cover Gypsum Anhydrite; Plasters (consisting of calcined Gypsum or Calcium Sulphate) whether or not coloured, with or without small quantities of Accelerators or Retarders . As clarified in the HSN, the products of heading 32.14 are preparations of widely differing composition which are essentially characterised by the uses to which they are put; these preparations are usually put up in a more or less pasty form and in general they harden after application; however, some are in solid or powder forms; the products of this heading are usually applied with a caulking gun, a spatula, a trowel, a plasterer s float or similar tools - the impugned product can only be classified in CETH 3214.00 prior to 1.3.2005 and 3214 90 10 thereafter. Time limitation - Held that - appellant cannot be charged with any of the ingredients for invoking extended period like suppression of facts, misstatement etc. - the confirmation of differential Central Excise duty with interest in respect of the proceedings initiated by SCN No.39/2008 dt. 10.03.2008 will have to be restricted only to the normal period of limitation - only for this limited purpose of quantification, matter is remanded. Penalties u/s 11AC and on the other Directors / Employees u/r 25/26 of the CER 2002 - Held that - As the issue involved was interpretational, the penalties imposed on the assessee under Section 11AC of the Act and on the other Directors / Employees under Rule 25/26 of the Central Excise Rules, 2002 are set aside.

Summary

Issues:
Classification of construction products under Central Excise Act, 1985.

Analysis:
1. The issue in this appeal revolves around the classification of construction products, specifically Ready Mix (Dry Mix) used in the construction industry. The appellant had classified the goods under Chapter Heading 2505.00 of the Central Excise Act, 1985, while the department disagreed and issued Show Cause Notices (SCNs) proposing reclassification under CETH 32149010. The SCNs also demanded differential duty, confiscation of goods, and imposition of penalties. The Commissioner (Appeals) set aside the original authority's orders, leading to the department's appeal.

2. The appellant argued that the product involved a dry mix process with ingredients like portland cement, white cement, and lime stone powder, which did not fall under Chapter Heading 2505.00 or 2520. The correct classification, according to the appellant, should be under CETH 3214.90. The appellant relied on a Tribunal decision supporting this classification for similar products.

3. The respondent contended that the demand under the first SCN was time-barred as the manufacturing process details were disclosed to the department earlier. The respondent argued that under the tariff, plasters with calcium sulphate basis were classified under Chapter Heading 2505, and even in the eight-digit nomenclature, they fell under Chapter 2520. The respondent believed that the impugned order was fair and did not require any interference.

4. Upon review, it was found that the impugned product did not have a basis of calcium sulphate and did not fit under CETH 2505.00 prior to 1.3.2005. Even under CETH 2520 post 1.3.2005, the product did not meet the criteria. The correct classification was determined to be under CETH 3214.00 prior to 1.3.2005 and 3214 90 10 thereafter. The orders setting aside this classification were set aside, restoring the original classification. The demand under the first SCN was restricted to the normal period of limitation due to early disclosure of manufacturing details.

5. The penalties imposed on the appellant and others were set aside as the issue was interpretational. The impugned order was set aside, restoring the original adjudication orders for the classification of goods. The demand under the first SCN was recalculated for the normal period of limitation, and the demand under the second SCN was upheld.

In conclusion, the department's appeal was disposed of with the above terms, emphasizing the correct classification of the construction products under the Central Excise Act, 1985.