TMI Blog2009 (6) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the demand to the period of limitation and not imposing any penalty. Therefore, we set aside the penalty imposed on the appellants and also demand for extended period. - The learned advocate’s contention that the decision of the Tribunal in Shanpur Industries was rendered ex parte and therefore is not relevant is clearly not correct. – Absence of assessee may indicate their realization that Revenue’s case is correct – such decision can be relied on especially if statements of assessee recorded earlier are on record - E/1188-1190/2006 - A/1210-1212/2009 - Dated:- 22-6-2009 - Shri Devan Parikh, Advocate, for the Appellant. Shri D.S. Negi, SDR, for the Respondent. [Order per: B.S.V. Murthy, Member (T)]. - The dispute is regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice has been held back. As such, in the interest of justice, we set aside the impugned order and remand the matter to the adjudicating Commissioner for re-adjudication of the case. The appellants shall be provided necessary information/inspection of the material made use of in the adjudication proceedings and they shall be provided with a reasonable opportunity of hearing before passing a fresh speaking order." 2. The Impugned Order-in-Original has been passed after the remand order. The Commissioner in the impugned order has confirmed the classification of the product under CETH 2918.00 and he has also held that extended period is applicable and has confirmed the demand for the full period covered by the show cause notice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uconic acid and Calcium Carbonate users. This is supported by the statement of senior G.M. of the company. 3.5 The production has therapeutic or prophylactic uses has not been disputed. 4. The Hon'ble Supreme Court in its decision reported at 2004 (178) E.L.T. 13 (S.C.) in the case of State of Haryana v. Dalmia Dadri Cement Ltd. has held that the words "for use" must be read as "intended for use" and not "actually used". Therefore the product is classifiable as medicament. In Shanpur Industries v. C.C.E. Ahmedabad reported in 2000 (119) E.L.T. 416 (Tribunal) Calcium Gluconate was one of several products being considered and that was an ex parte decision. The facts of the case demonstrated that when calcium gluconate itself is considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ientific or technical meaning of terms and expressions but to their popular meaning as attached to it by persons dealing with that product. In support of this condition he cited the decisions of the Supreme Court in C.C.E., Nagpur v. Vicco Laboratories reported in 2005 (179) E.L.T. 17 (S.C.) and Dabur (India) Ltd. v. C.C.E., Jamshedpur reported in 2005 (182) E.L.T. 290 (S.C). Thus from common parlance test also calcium gluconate is classifiable under CETH 2918.00 only. Further, the new Central Excise Tariff introduced with effect from 28-2-2005, calcium gluconate appears under sub-heading 291816 10. 6. We have considered the rival submissions. Calcium gluconate IP manufactured by the appellants is clearly classifiable under CETH 2918.00 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i)(a). In East India Pharmaceutical Works Ltd. v. C.C.E., Bollpur reported in 2003 (154) E.L.T. 527 (Tri.-Kolkata) cited by the advocate, the product in dispute was held to be covered by Chapter Note 2(i)(b) of Chapter 30 and therefore the judgment is not relevant. In Bescoat v. C.C.E., Cochin reported in 1998 (101) E.L.T. 404 (Tribunal) it was again held that Kaolin Light IP and NF was not classifiable under Chapter 30 but under Chapter 25. 7. As regards penalty we agree that the Commissioner has gone beyond the remand order and the appellants could not be visited with demand for extended period and penalty when the department has not even appealed against the Order-in-Original limiting the demand to the period of limitation and not impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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