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2020 (9) TMI 502 - AT - Central ExciseClassification of goods - RBD Palm Stearin which they manufacture from refined palm oil - classified under Central Excise Tariff heading 1511 9090 or not? - benefit of N/N. 03/2006- CE dt.01.03.2006 (S.No.9) (as amended) - CBEC Circular No.81/2002-CUS dt.03.12.2002 - period September, 2008 to September, 2010 - extended period of limitation - HELD THAT:- The issue has been settled by the Hon’ble Apex Court in October, 2010 in the case of CCE, C AND SERVICE TAX VERSUS JOCIL LTD. [2010 (12) TMI 24 - SUPREME COURT] and it has been held that Palm Stearin is classifiable under Central Excise Tariff Heading 3823 and not under CTH 1511. Thus, it has been decided against assessee and in favour of the revenue - Respectfully following the judgment of the Hon’ble Apex Court in the case of JOCIL Ltd, it is held that the appellant’s product is classifiable under CTH 3823 and not under CTH 1511 as claimed by the appellant. Consequently, the exemption notification claimed by the appellant is also not applicable as the relevant entry pertains to only goods falling under Chapter Heading 1507 to 1515. Clearly the appellant’s product falling under CTH 3823 is not covered. Extended period of Limitation - HELD THAT:- The appellant has been filing ER-1 returns claiming the product’s classification under CTH 1511 and there has been correspondence between the department and the appellant in this regard. On 03.12.2008 the department advised the appellant that the classification of Palm Stearin in ER-1 returns is not correct to which the appellant responded on 06.01.2009 justifying their classification. Thus, the department was fully aware of the appellant’s classification. There is no delay in the appellant responding to the revenue’s letter. It was open for the revenue to issue a show cause notice if they did not find the appellant’s reply acceptable. However, this was not done. No action was taken until the expiry of normal period of limitation and thereafter, demand has been raised invoking extended period of limitation - The entire demand is based on the information provided by the assessee in their ER-1 returns. Making a wrong claim of classification, per se, is neither fraud nor collusion nor wilful misstatement nor suppression of any facts. It is just a wrong claim. If the claim is wrong in the ER-1 returns, it was open for the revenue to have raised demand by issuing a show cause notice immediately. Therefore, we find that there is no ground for invoking extended period of limitation in this appeal. The appeal is allowed on the ground of demands being time barred - Appeal allowed - decided in favor of appellant.
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