TMI Blog2012 (6) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... en to the department to change the classification if the product was held to be classifiable under a different heading/sub-heading - review order also held that there is no estoppel in the matter of taxation - classification accepted by the Assistant Commissioner cannot be challenged who is the proper officer under Central Excise Law to finalize classification - against revenue. - E/A/478/06, E/A/422/06 - - - Dated:- 3-4-2012 - SHRI S.K.GAULE, DR. D.M.MISRA, JJ. SHRI S.CHAKRABORTY, A.R. (ASSTT. COMMR.) FOR THE REVENUE; SHRI AMALENDU CHAKRABORTY, CONSULTANT FOR THE RESPONDENT(S). Per Shri S.K.Gaule Heard both sides. 2. Revenue filed these Appeals against the Order-in-Appeal 21/CE(A)/GHY/06 dated 27.02.2006, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of suppression of facts and misdeclaration/misclassification and the learned Commissioner (Appeals) failed to appreciate the same. The learned AR also reiterated what is stated in the Grounds of Appeals. 5. Learned Consultant appearing for the Respondents contended that they were clearing the goods at nil rate of duty as per their classification of the goods in question under Chapter Heading 84.33, vide their Classification List effective from 01.04.94. The Classification List was approved by the competent authority of Central Excise. The contention is that since they had been classifying the products under Chapter Heading 84.33 w.e.f.01.04.94, they were paying the duty accordingly. The contention is that as per Chapter Heading 84.33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese findings. Only objection in the Review Order was that the documents available before the Additional Commissioner were not available before the Assistant Commissioner at the time of approval. But no such document has been specified by the Commissioner. I have perused the copy of the Show Cause Notice filed with the Review Application but l do not find any such evidence in the Show Cause Notice, which was not available to the Assistant Commissioner, to determine the classification otherwise. The Show Cause Notice also did not allege that material facts were suppressed by the respondents, it only alleged that they misdeclared/misclassified the products under a different heading in order to enjoy exemption benefit. The case records reflect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en strength from the provisions of retrospective amendment made in Section 11A vide Section 110 of the Finance Act, 2002. I find that for demanding duty under Section 11A. invoking extended period for demand, the charges of suppression, mis-statement etc. has to be established. This amendment gives authority to demand for previous period of one year/five years even if classification list was approved as under Section 11A prior to its amendment demand could be only prospective if classification was approval by the Department in view of law laid down in Cotspun Ltd. case [1999 (113) ELT 353 (SC)]. 7. We find that the learned Commissioner (Appeals) has given cogent findings. The Department could not produce anything contrary. Thus, we do n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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