TMI Blog1996 (7) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... 3810.90 whereas the department contends that they are classifiable under Item No. 3810.10. 2. By show cause notice dated 7-12-1988, the Additional Collector alleged that appellants had been manufacturing and clearing Dhanumon , a plant Herbicides falling under sub-heading 3808.90 of the Central Excise Tariff Act, 1985 without Central Excise licence, without payment of duty, without maintaining central excise records and without observing other formalities. The appellants factory was earlier visitied by Central Excise staff on 22-2-1988 when they found that the appellants unit was engaged in the manufacture of Insecticides, Herbicides, Fungicides and plant harmones, all falling under Heading No. 38.00. The show cause notice called upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product `Dhanumon was a plant harmone, the composition of which was totally different from the composition of the insecticides. Whereas the composition of the insecticides was ANA 4.5% Solution w/w , the composition of `Dhanumon was Alpha Naphthyl Acetic Acid 4.5%" and Adjuvants 95.5% . The Additional Collector also referred to technical literature on the product supplied by the appellants which reads as under :- Dhanumon, is a plant harmone spray based on Naphthyl Acetic Acid (4.5% w/w). It has been confirmed in various experiments on different crops that use of planitex has helped in inducing flowering and checking buds drop, flower drop and fruit drop, therefore, increasing the yield . In view of the difference in the compositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va, on the other hand, contends that plant growth regulator is also classifiable as an insecticide under the Insecticides Act. 5. As regards the question of limitation, learned Counsel for the appellants contended that there was no intention on the part of the appellants to evade payment of excise duty as they were under the bona fide impression that the product was squarely covered under Heading 3810.90 and hence no duty was payable. Counsel also contended that when identical products manufactured by competitors were not charged to excise duty, the question of entertaining any mala fide intention on the part of the appellants not to pay excise duty did not arise. Therefore, the longer period cannot be invoked and the demand of duty was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 26-4-1988 classifying `Dhanumon as a plant growth regulator and, therefore, well within the limits of 5 years period under the proviso to Section 11 of Central Excises and Salt Act, 1944. Accordingly, we uphold the order of the Additional Collector dated 21-2-1990 and reject the present appeal. 8. We also take into account the Tribunal s order dated 11-12-1995 in E/Misc./1342/95-C vide Misc. Order No.194/95-C in which the question of imposing penalty was considered. In that order, the Tribunal had referred to the case of M/s. Padmini Products wherein it was held that the imposition of penalty cannot be sustained in view of the findings that the demand of duty was hit by limitation. Since in the instant case, there is no finding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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