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2015 (10) TMI 2267 - CESTAT MUMBAI

2015 (10) TMI 2267 - CESTAT MUMBAI - TMI - Duty demand - Classification of good - Classification under Heading 2710.90 or under Heading 2710.13 - Captive consumption - Held that:- Both the Revenue as also the assessee in their grounds of appeal have urged that the Commissioner (Appeals) should have decided himself instead of remanding the matter. Revenue s contention is that the main terms of remand is to get the goods retested, but the goods are not being manufactured any more and, therefore, n .....

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ssessee themselves, statements made by various personnel of the assessee and other related evidences, we consider it appropriate that we set aside the order of the Commissioner (Appeals) and remand the matter to the Commissioner (Appeals) to re-adjudicate the matter based upon the evidences already available and which form part of the show cause notice. - Matter remanded back - Decided in favour of assessee. - APPEAL Nos. E/1960, 1961/05, E/2104/05, E/2203/05-Mum - Dated:- 19-8-2015 - Mr. P.K. J .....

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was captively consumed as a fuel by burning the same. The second item viz. Heptane was being cleared on payment of duty under Heading 2710.90. Revenues case is that both the items are classifiable under Heading 2710.13 and are chargeable to duty accordingly. On the basis of an intelligence about the mis-classification of the goods, DGCI officials investigated and in the process, recorded certain statements and also got the sample of Heptane tested from Deputy Chief Chemist. Certain test report .....

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i S.P. Thakkar, General Manager, under Rule 209A of the erstwhile Central Excise Rules and also ordered recovery of interest under Section 11AB. Aggrieved by the said order, the assessee filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide the impugned order dated 25.2.2005 remanded the matter back to the lower authority with the direction to draw and get the samples of the product properly tested and redetermine the classification of the product and re-adjudicate t .....

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nded by the Revenue in their grounds of appeal that the show cause notice already provides sufficient evidences to decide the classification of the goods. The assessee has also filed the appeal on the grounds that the Commissioner (Appeals) ought to have decided the case himself instead of remanding the case to the lower authority for redetermination of the classification of Heptane and Iso Pentane Mix, since all the relevant materials for determining the classification were given by the assesse .....

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is further divided into 2710.11, 2710.12, 2710.13, which covers special boiling point spirits (other than Benzene-Toluol) etc. with nominal boiling point range 55-115:C specified in that sub-heading etc. He submitted that the main sub-heading corresponding to 2710.13 itself will indicate that there are two requirements. The first requirement is that the flash point should be below 25:C and the second is that the hydrocarbon oil either by itself or in admixture with any other substance is suitab .....

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ot determined. His submission was that the department has not bothered to get the second characteristics determined from any source and under the circumstances, the department cannot classify the product under 2710.13. He further submitted that the burden of classifying the goods under a particular heading is on the Revenue, which has not been discharged by them. He further submitted the following case laws in support of his contention that since the Revenue has not been able to satisfy the seco .....

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. CCE reported in 2003 (155) ELT 204 (T); (vii) Indian Oil Corpn. Ltd. vs. CCE 1990 (45) ELT 134 (T); (viii) CCE vs. Sun Coats & Chemicals (I) Ltd. reported in 2008 (231) ELT 531 (T), (ix) Avani Petrochem Ltd. vs. CCE reported in 2010 (249) ELT 117 (T). 5. Learned AR, on the other hand, submitted that the first of the foremost thing is that the unit has stopped producing the goods long back and, therefore, at this stage it is not possible to draw the samples and determine the suitability as .....

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of UOI vs. Garware Nylon reported in 1996 (87) ELT 12 (SC) but has ignored the observation of the Honble Supreme Court in para 15 of that very judgment. He submitted that in the present case there is substantive evidence in the form of statement dated 8.2.2001 and 2.3.2001 of Shri S.P. Thakkar, General Manager of the assessee, statement dated 8.2.2001 of Shri J.A. Koli, Superintendent of Quality Control of the assessee, write up of process description submitted by the assessee and the test rep .....

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reports to identify the contents of the goods were available and there were no documentary evidences. However, in the present case, these details are available. Learned AR also submitted various case laws mentioned in the grounds of appeal to support the departments contention that on the basis of the statements and the available evidences, it is possible to decide the issue and the matter should have been decided by the Commissioner (Appeals) rather than remanding it for retest when the produ .....

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ude mineral oil) which has its flash point below 250C, and which either by itself or in admixture with any other substance, is suitable for use as fuel in spark ignition engines : 2710.11 Special boiling point spirits (other than Ben-zene-Toluol) with nominal boiling point range 55-1150C 16% 2710.12 Special boiling point spirits (other than Benzene, Ben- zol,Toluene and Toluol) with nominal boiling point range 63-700C 2710.13 Other special boiling point spirits (other than Benzene, Benzol, Tolue .....

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point below 250C, and which either by itself or in admixture with any other substance, is suitable for use as fuel in spark ignition engines. 7. We find that both the Revenue as also the assessee in their grounds of appeal have urged that the Commissioner (Appeals) should have decided himself instead of remanding the matter. Revenues contention is that the main terms of remand is to get the goods retested, but the goods are not being manufactured any more and, therefore, neither the sample can .....

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