9911796707
TMI Blog1998 (12) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... nufactured and removed during the period from 1-4-1986 to 28-2-1987 and has also imposed a penalty of Rs. 10,000/- on the appellants herein under Rule 173Q(1) of the Central Excise Rules, 1944. The assessee's contention is that even though they had filed a classification list during the relevant period when they had classified the above mentioned product under CET sub-heading 1901.90, the item was not marketable due to its short shelf life and was hence not `goods' liable to any duty; their further contention is that the demand is barred by limitation - the show cause notice was issued on 15-3-1990 and in the face of an approved classification list which was filed along with the process of production of Maltodextrin, suppression cannot be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture. Therefore, in the face of the approved classification list and in the absence of finding of suppression or deliberate misdeclaration about the nature of the product, the Department cannot seek to apply the extended period of limitation in this case. The claim of classification under a heading different from the heading applicable according to the Revenue, does not amount to suppression or mis-statement etc. with intent to evade payment of duty so as to invoke the extended period of limitation. We, therefore, hold that the demand raised on 15-3-1990 for the period from 1-4-1986 to 28-2-1987 is time barred and accordingly set it aside. Issue No. 2 : The process or production of Maltodextrin as seen from the appellants Write Up is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of flour, meal, starch or malt extract ... etc' but under Heading 17.02 which covers `other sugars including chemical powder lactose, maltose, glucose fructose ... etc' and hence issued a show cause notice proposing classification under CET sub-heading 1702.19. Along with the reply to the show cause notice in which the appellants emphatically claimed that maltodextrin was not an excisable commodity since it was unstable interim product which was not marketable since no preservative are added to it, they enclosed copies of certificates from the National Dairy Research Institute, Karnal, Central Food Technology Research Institute, Mysore and the Department of Chemical Technology, University of Bombay, all centifying that maltodextrin wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves were added to the product. 4. That the product may be stabilised by addition of preservatives or additives is not relevant for deciding the issue of marketability of the product because what has to be determined is whether the product as it is, is capable of being marketed. Reliance by the appellants on the judgment of the Apex Court in the case of Ambalal Sarabhai Enterprises [1989 (43) E.L.T. 214 (S.C.)] is well placed, the product in that case was hydrolysed starch. The assessees in that case had led in evidence in the form of an affidavit to support their contention that hydrolysed starch was not marketable while the Department had not led any evidence to show that such product was capable of being marketed. In that context, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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