TMI Blog2014 (12) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... uppression. Thus, prima-facie, the appellants have made out a good case regarding non invokability of the extended period. It is seen that out of the impugned demand, an amount of about ₹ 8.68 lakhs pertains to the normal time limit. Therefore, we are of the view that pre-deposit of ₹ 8.70 lakhs with proportionate interest would meet the requirement of Section 35F of the Central Excise Act, 1944 - Partial stay granted. - Appeal Nos. 50250 to 50253 of 2014 - Stay Order Nos. 53297 - 53300/2014 - Dated:- 22-9-2014 - Mr. G. Raghuram and Mr. R. K. Singh, JJ. For the Appellant : Shri Vivek Kohli, Advocate For the Respondent : Ms. Sweta Bector, DR ORDER Per: R. K. Singh: The appellants filed the stay appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir product under 24039960 as tobacco extracts and essence and continued to pay duty as per section 4 of the Central Excise Act. The department vide the impugned order-in-original held that their product is rightly classified under 24039920 which is liable to be assessed under Section 4A ibid and hence the impugned demand and penalties. 3. The appellants have contended that: (i) After the introduction of eight-digit-based tariff, their product was more specifically classifiable under heading 24039960 as it was essentially a tobacco extract. (ii) It was classified as preparation containing chewing tobacco under heading 2404.41 during the six digit-based tariff regime as a more specific entry was not available at that point of time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eight digit tariff regime preparations containing chewing tobacco are covered under tariff sub-heading 24039920. Consequently the impugned goods are prima facie classifiable under sub-heading 240399.20. Once the impugned goods held classifiable under sub-heading 240399.20, their assessment admittedly has to be in terms of Section 4A ibid and therefore, prima-facie, the impugned demand is sustainable on merit. 5. The appellant have also argued that: (i) There is no suppression and they have been filing all their returns showing the classification of the impugned goods. (ii) It is not the case that they have done any clandestine removals. (iii) They have been clearing goods paying duty thereon as per Section 4 ibid. 6. We fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they were clearly of the view that their goods were classifiable where they classified them. The Commissioner (Appeals) has not mentioned anywhere as to what they suppressed which was required to be disclosed as per law. Not taking suo moto initiative has never been a valid ground for sustaining charge of suppression. Indeed, this point is too well settled to warrant judicial citations like Cadilo Laboratires vs. CCE Vadodara - 2003 (152) ELT 262 (SC), Padmini Products vs. CCE, Bangalore - 1989 (4) SCC 275, CCE, Hyderabad vs. Chemphor Drugs Linimeats - 1989 (2) SCC 127. The very fact that they have been paying duty as per Section 4 also goes to show that prima facie they had no intention of hoodwinking the department. 8. Thus, pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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