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TMI Blog2012 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Plate processor and parts thereof are classifiable under Heading 8442. (3) Differential duty of Rs. 2,40,821/- is confirmed on account of revised classification. (4) Small Scale Exemption under the Notification No. 175/86 dated 1-3-1986 is not admissible for the period 1-4-1989 to 27-10-1992 for using the brand name of another. (5) Demand of duty of Rs. 2,83,999/- is confirmed on account of denial of the small scale exemption. (6) Penalty of Rs. 26,000/- is imposed under Rule 173Q. 3. The impugned order has been challenged for various grounds including the following :- (a) The adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubber Distributors v. CCE, Calcutta - 2000 (125) E.L.T. 671 (Tribunal). 5. The Ld. DR supports the impugned order. She states that the adjudicating Commissioner has passed a very detailed order examining all the issues relating to classification, small scale exemption and application of extended period of time. She relies on the following decisions in support of the department's case :- (a) UOI v. J.J. Electricals - 1999 (106) E.L.T. 15 (S.C.) (b) CCE, Chandigarh v. Khanna Industries - 2007 (207) E.L.T. 17 (S.C.) (c) UOI v. Paliwal Electricals Pvt. Ltd. - 1996 (83) E.L.T. 241 (S.C.) She also states that the appellants had suppressed the fact of using the brand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c stones, prepared for printing purposes (for example, planed, grained or polished). 9009 : Photo-copying apparatus incorporating an optical system or of the contact type and thermo-copying apparatus. 8. The function of the impugned goods has been adequately described in the impugned order and there is no dispute about the same nor is there any need to reproduce the details of the functions of the impugned goods. It is clear that these goods are used for making printing plates by a process which transfers a photograph/artwork and/or text for printing on to a film which is subsequently transferred to a printing plate. Printing plates are required to be used in offset printing machinery for actual printing of texts including pictures. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts for making plates. Parts also technically get classified under the same heading as ordered by the adjudicating Commissioner. 10. Accordingly, we hold that all the impugned goods are classifiable under Heading 8442 and the duty demand would have to be reworked out accordingly. The appellants had also raised the ground of limitation in respect of the first demand relating to the re-classification of the impugned goods. We note that the adjudicating Commissioner has held that notwithstanding the approval of classification list earlier, the impugned goods are re-classifiable and the demand made in this regard is sustainable as the entire demand relates to the normal period. Various grounds of appeal raised in this regard are of no sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts during the relevant period and that their plea was only an after thought. In the present case, the issue of applying the extended period has been dealt with by the Adjudicating Commissioner. In this regard, her findings are as under :- "The assessee had further expressed that right from 1986 onwards they were filing RT 13 returns along with the respective invoices which include Novalith brand sales that they are availing the exemption under bona fide belief that they are eligible. They cited a judgment of Tribunal published in 1992 (60) E.L.T. 395. They also quoted the judgment of Tribunals in the case of Chemphar Drugs and Padmini Products to support their view. "In this connection I observe on verification that the invoices raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned goods on which M/s. Technova's brand name was used, it cannot be explained as to why the information relating to affixing the brand name of M/s. Technova was suppressed and kept away from the knowledge of the department. Further, we find that the Hon'ble Bombay High Court in the case of CCE, Raigad v. Ramply (India) Ltd. - 2010 (249) E.L.T. 31 (Bom.), has held that non-declaration of use of other's brand name despite having knowledge about the same, amounts to suppression. Accordingly, we hold that in regard to the demand relating to non-availability of small scale exemption, the extended period of limitation is applicable on the ground of suppression. 13. In view of the findings as above, we allow the appeal partly by hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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