TMI Blog2013 (11) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... nt testing of starch samples manufactured by the respondent and the cross examination of Dr. G.P. Sharma, the Chemical Examiner, it has clearly come out that the MSP starches manufactured by the assessee belong to category of native starches of CETH 1103.00 and not modified starches of 3505.90. Time-barred appeal - The adjudicatory authority has also dropped proceedings on the ground that extended period cannot be invoked in the case - Proceedings regarding demand of duty being time-barred, has not be questioned by the Revenue – Decided against Revenue. - Appeal No. : E/390 & 391 of 2007 - Final Order Nos. A/10968-10969/2013-WZB/AHD - Dated:- 7-8-2013 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri K. Sivaku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are commercially processed to give a wide range of products classified under other headings e.g. modified starch etc. and they are used in a wide variety of industries like food, paper and textiles. Shri Bhupendrabhai A Dakwala, Asst. Sales Manager of the assessee also has stated in his statement dated 27.11.01 that their product were used in textile industry, food industry, pharma industry, paper industry, etc. The contents of the said statement have been corroborated by Shri Surendra S. Varma, Sales Manager of the said assessee. (ii) That it has been stated by Shri Bhupendrabhai Dakwala in his statement dated 27.11.01 that in the case of Macropharm Starch Powder, the same was sent for ethylene oxide treatment. Etherified starches have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied starch and not native starch as claimed by them. (v) That the assessee has misled the Revenue by mis-declaring and mis-classifying their product under one heading. They have not disclosed the parameters and use of chemicals for manufacturing their product. The material facts have not been declared to the Revenue. Thus it is clear that there was suppression of facts and wilful mis-declaration and deliberate mis-classification of their product. The ingredients of the proviso to Section 11A (1) of the Central Excise Act, 1944 are clearly present in the instant case. The adjudicating authority has erred in not invoking the extended period. (vi) That in view of the above, the adjudicating authority has erred in classifying the product u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... starch under dispute were drawn in the presence of Central Excise officers and the Chemical Examiner, Vadodara and the chemical reports of Dr. G.P. Sharma, Chemical Examiner of Central Excise and Customs laboratory, Vadodara. On proper testing of these samples, it was found that MSP manufactured by the respondent were native starch or ordinary starch. It was also argued that Dr. G.P. Sharma was also subjected to cross-examination before the adjudicating authority and after detailed discussion on the subject as per Indian Standard 1184-1977 and Indian Standard 1005-1992 it transpired that the starch manufactured by respondent was Native starch and not modified starch. He also emphasized that no ground has been taken by the Revenue regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar category. The Chemical Examiner who conducted the above test was Shri Narendra Kumar and was subjected to cross examination on 12.12.2005. In the Chemical Examination, inter-alia Shri Narendra Kumar explained that heat application for a period of 2 or 3 seconds is sufficient in a flash dryer process to make MSP into modified starch. As the chemical test of starch manufactured by the respondent read with the cross-examination was not conclusive, further samples of all varieties of starches under dispute were drawn by the Central Excise officer and the Chemical Examiner for testing, in the light of Indian Standard 1184-1977 and Indian Standard 1005-1992 and it was reported by Dr. G.P. Sharma, Chemical Examiner, Central Excise and Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sifiable under Chapter 11 of the Tariff or Chapter Heading 3505 of the Tariff. 7. From the reading of above finding of the CESTAT Bench, it is evident that classification of modified starch of Chapter 3505 and native starch as of Chapter 11 can only be made after proper chemical testing. It is also evident from the reading of Para 7.5 of this judgment that Indian Standard of modified starches and native starch are available. In the instant case, when the sample of the MSP manufactured by the respondent was not tested properly by keeping the Indian standards in mind, then there does not seem to be any irregularity on the part of adjudicating authority to get samples drawn and tested as per parameters given in Indian Standard, when such an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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