TMI Blog1999 (10) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11A(1) of the C.E. Act, 1944 thereby confirming duty demand of Rs. 10,79,343.81 and penalty of Rs. 1,00,000/- under Rule 173Q(1), 226 and 52A of the C.E. Rules, 1944. The appellants contested the classification proposing alternative classification under heading 3808.10 as Fungicides. 2. Heard Shri S.S. Naganand, learned Counsel and Smt. Aruna N. Gupta, learned DR. 3. The learned Counsel submitted that the extended period under the said provisions would not be applicable as vide their letter dated 19-5-1989 to the Deputy Collector, Central Excise, had indicated that the said products being Fungicides would fall under heading 3808.10 and sought confirmation thereof. Vide reply dated 23-5-1989, the Additional Collector had confirmed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more specific description of the product being used for the purpose of anti-fungi treatment, apart from some other treatment including anti-bacteria, anti-viral and anti-sprofic and other similar control usage. He submits that since the main use was that of Fungi, therefore, the additional benefit available therein could not disqualify the products from being classified as Fungicides. 6. The learned Counsel also submits that the brand name used by them was in the use ever since they have commenced their manufacturing activity for a long time after the technology transfer from their parent Company in Germany. The package therefore bear the legend, the product was manufactured under licence under technical collaboration of the Company in G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be applicable to the appellants. 9. The learned DR submitted on the issue of classification that the Collector has not relied upon merely the Chemical Examiner's report but also had gone by statements of appellants' employees who have described the disinfectant for Veterinary use. On the classification issue, the leanred DR is at pains to explain that Fungicides as per page 566 of the HSN, is limited to merely controlling or destroying Fungi. Disinfectants contain chemicals which control or annihilate other unwanted micro organism be for bacterial, viral, spores or similar organism. A perusal of the description contained in the product label clearly shows that apart from the use as Fungicides, these are to be used as disinfectan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion. Appellants had also presented technical opinion and test report to the contrary. It would be in the interests of justice, if the department's technical expert was allowed to be confronted by the appellants as these technical opinion/test results could bring out the veracity of the department's own test results. Secondly, in the alternative, the Collector could have sought technical opinion of the appropriate Governmental Chemical agency on these technical opinion and test results submitted by the appellants. This has not been done. 12. In view of the aforesaid analysis there are shortcomings in the order in original and the same needs to be set aside and the matter remanded for de novo consideration in the light of our above obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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