TMI Blog2009 (12) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriate duty applicable. The department took the stand that the impugned product is not a medicated soap and hence ought to be reclassified as toilet soap under sub-heading 3401.19 of Central Excise Tariff Act, 1985. Consequent on such reclassification the department demanded the differential duty as well as penalty for the period May 2003 to December 2003 by issuing show cause notice to the appellants. Held that- The Tribunal passed the order on 13-5-2005, whereas the show cause notice related to the year 2003. Therefore, it cannot be said that there was any suppression of facts or willful mis-declaration, fraud or collusion etc. In view of the above position, while on merits, we find that appellants have no case and therefore, they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants. The appellants were in receipt of show cause notices in the past on very same issue of which they had given comprehensive reply relying on various Tribunals decisions in support of their claim that the "Tetmosol" is a medicated soap and correctly classifiabiy under C.S.H. No. 3401.11 of Central Excise Tariff Act, 1985. 2. The issue ultimately reached to the Tribunal and this Tribunal vide order reported in 2005 (188) E.L.T. 519 (Tribunal) = 2005 (69) RLT 367 (CESTAT-Mumbai) held that Tetmosol soap is toilet soap and classified under Chapter heading 3401.19, thus the issue of classification stands settled against the appellants. 3. Further, whether the appellants are liable to pay penalty equal to duty imposed on them, under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Rules, 2002". Section 11AC of Central Excise Act, 1944 is attracted only when short levy occurs because of suppression of facts, mis-declaration, fraud or collusion etc. In the absence of any such allegation with supporting evidence in the show cause notice, penalty under section 11AC cannot be imposed. Further, we find that this is a demand for subsequent period and when the show cause notice was issued, the issue for the earlier period had not attained finality. The issue attains finality after the order was issued only. The Tribunal passed the order on 13-5-2005, whereas the show cause notice related to the year 2003. Therefore, it cannot be said that there was any suppression of facts or willful mis-declaration, fraud or collus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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