TMI Blog2013 (11) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... when Revenue was aware of the facts, the show cause notice was issued only 3.7.2008, covering the period June, 2003 to February, 2008. The appellant filed proper classification list, and they were also regularly filing monthly ER-1 returns showing the manufacturing and clearance of the pre-mix tea, by adopting classification under heading 2108.99 - No objection was ever raised by the Revenue - When the Revenue was raising the show cause notice in respect of pre-mix coffee, they could have or they should have raised show cause notice in respect of pre-mix tea also - It is well settled law that claiming classification under a particular heading does not amount to suppression or mis-statement with intent to evade payment of duty - the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ld. Advocate, Shri B.L. Narsimhan appearing for the appellant fairly concedes that the issue of classification stands decided against the appellant in their own case reported as Nestle India Ltd. Vs. CCE, Ludhiana-2005 (169) ELT 22 (Tri.-Del.). The said order stands confirmed by Hon ble Supreme Court when the appeal filed by the appellant was rejected as reported in 2005 (179) ELT A-150 (SC). However, he fairly agrees that the product in the said judgement was Nescafe Pre-mix Coffee whereas in the present case is Nescafe Tea premix. Ld. Advocate submits that the reasons for classifying the pre-mix under particular heading are identical in both the cases i.e. in the pre-mix coffee and the said decision would be fully applicable to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n after passing of the said order, was of the view that pre-mix tea will not be covered by the said decision. He submits that inasmuch as the entire facts were in the knowledge of the Revenue, invoking longer period is not justified. He further submits that demand of duty falling within the limitation period, being an amount of Rs.52,61,523/- already stands deposited by them alongwith interest of Rs.16,55,087/-. As such, he prays for allowing the appeal only on limitation and also setting aside the penalty imposed upon them. 4. Ld. DR appearing for the Revenue draws our attention to the relevant paragraph of the impugned order, wherein the Commissioner has observed that the appellant continued to adopt classification under heading 2108.99 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said flow chart or manufacturing process. Similarly, the observations of the adjudicating authority that inspite of the Tribunal s order in respect of pre-mix coffee powder, the appellant continued to claim classification of pre-mix tea under heading 2108.99, does not appeal to us inasmuch as the Revenue was equally aware of the said decision of the Tribunal. Inspite of that, no initiative was taken by the Revenue to propose change in the classification of pre-mix tea and to raise differential duty demand. There is no explanation forthcoming as to why when Revenue was aware of the facts, the show cause notice was issued only 3.7.2008, covering the period June, 2003 to February, 2008. 6. Not only the appellant filed proper classification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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