TMI Blog2015 (5) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... view of inconclusive chemical report the product, in question, cannot be classified under heading 27101119. - for classifying a product as motor spirit both the criteria regarding flash point being below 25°C and suitability for use, either by itself or in admixture with other substance as fuel in spark ignition engine, must be satisfied by actual test. In view of this, we hold that while the order in original dated 31.08.2009 passed by the Commissioner is not sustainable, there is no infirmity in the orders - Decided in favour of assessee. - E/Stay/3314-3323/2009, Appeal No.E/3233-3242/2009, E/Cross/2841/2012, Appeal No. E/1262/2012, Appeal No. E/3106/2012 - Final Order Nos. 50361-50372/2015 - Dated:- 4-2-2015 - Rakesh Kumar, Member (T) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity at 22 C is 0.7101, held that the product, in question, is Other Motor Spirit covered by sub-heading 27101119 of the Central Excise Tariff. Against this order of the Commissioner, the appeal no. E/3233 to 3242/2009 have been filed along with stay applications. 1.2 For the period from October 2008 to January 2010, the Jurisdictional Additional Commissioner by two separate orders confirmed the total duty demands of ₹ 1,17,54,675/- and 93,08,987/- against the assessee by classifying the same product as Other Motor Spirits under sub heading 27101119 of the tariff, along with interest and beside this, he also imposed penalties of the same amount under section 11AC. However, on appeals being filed to Commissioner (Appeals), agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other condition that the product either by itself or in admixture with any other substance, must be suitable for use as fuel in spark ignition engines, must also be satisfied, that the chemical examiner's report relied upon by the Commissioner simply mentions its flash point as below 25 C but the report is totally silent about the other condition whether the product either by itself or in admixture with any other substance, is suitable for use as fuel in spark ignition engines, that in view of this, the product, in question, cannot be classified as special boiling point spirits of sub heading 27101119, that it is in view of these facts, that the Tribunal in its earlier judgment in the case of Kuchchal Chemicals Ltd. vs CCE Lucknow repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t correct and similarly, there is no infirmity in the order of the Commissioner (Appeals) upholding the classification of the goods as organic solvents not elsewhere specified under heading 3814. 4. Shri Yashpal Sharma, the Ld. DR defended the Commissioner's order dated 21.12.2009 by reiterating the findings of the Commissioner and also assailed the orders of the Commissioner (Appeals) against which the revenue is in appeal by reiterating the grounds of the Revenue's appeal. He pleaded that since, the flash point of the product, in question, is below 25 C, the product, in question, has been correctly classified under heading 27101119, and that for classification under this heading, the actual test as to whether the product by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se as fuel in spark ignition engines can be presumed or informed without actual test. In this case, the chemical examiner's report while mentioning the flash point as below 25 C is totally silent about the other factor as to whether the product either by itself or in admixture with other substance is suitable for use as a fuel in spark ignition engines. Therefore, in our view, in view of inconclusive chemical report the product, in question, cannot be classified under heading 27101119. We are supported in this view of the Tribunal's Judgment in the case of Kuchchal Chemicals Ltd. vs CCE Lucknow reported in 2012 (288) ELT 585 (Tri. Del) and also Tribunal's judgment in the case of Jagdamba Petroleum (P) Ltd. vs. CCE Noida (Supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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