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2015 (11) TMI 315 - CESTAT MUMBAI

2015 (11) TMI 315 - CESTAT MUMBAI - TMI - Classification of goods - Classification under Chapter Heading number 27.01 or under Chapter Heading number 34.03 - benefit of lower rate of duty - Bar of limitation - Held that:- If the Department had any doubts as to the classification of the said products, they should have informed the appellant to produce further documents in order to correctly classify the products. There being no correspondence from the Department, before the approval of the classi .....

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the appellant to go for the drawal of the samples and get the same tested in order to ascertain the correct classification of the product, during the relevant period. Having not done so, revenue authorities now cannot turnaround and allege that there was suppression, mis-statement on the part of appellant.

There is nothing on record to show that during the relevant period, the job cards of the products in question were indicative of the classification under chapter 34. In any case, r .....

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o. E/1738/05 - Dated:- 21-10-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) For the Petitioner : Shri M.H. Patil, Advocate For the Respondent : Shri Ashutosh Nath, Asst. Commr (AR) ORDER Per: M.V. Ravindran This appeal is directed against Order-in-Original No. 5/2005 dated 16.02.2005. 2. Filtering out the unnecessary details, the facts that arise for consideration are that during the period January 1994 to March 1995, the appellant cleared some products manu .....

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sclassifying the products in order to evade duty, allegations of suppression were also levelled against the appellant. The appellant contested the show cause notice on merits as well as on limitation. The adjudicating authority after following the due process of law did not agree with the contentions raised and confirmed the demands with interest and imposed penalties. 3. Learned Counsel, at the outset, submits that though they have a good case on merits, he would essentially argue on the limita .....

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based on the statements recorded of the personnel of appellant. It is his submission that the appellant had filed the clarification in accordance with the knowledge he had about the products, if the revenue had any doubts, they should have got the classification from the appellant immediately. He would submit that the judgement of the Supreme Court in the case of Densons Pultretaknik 2003 (155) ELT 211 (SC) is directly applicable in this case. 4. Learned Departmental Representative would support .....

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en take us through the statements of persons working in the appellants factory/refinery. 5. We have considered the submissions made at length by both sides and perused the records. 6. On perusal of records, we find that the appeal could be disposed of on the ground of limitation only. It is noticed that for the period in question in this appeal, appellant had filed classification list, classifying the products under chapter heading number 27.01. The said classification lists were approved by th .....

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dge they had about the product. Nothing was brought to our notice that Department entertained any doubt as to the correct classification of the product. In our considered view, if the Department had any doubts as to the classification of the said products, they should have informed the appellant to produce further documents in order to correctly classify the products. There being no correspondence from the Department, before the approval of the classification list, it has to be inferred that the .....

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mples and get the same tested in order to ascertain the correct classification of the product, during the relevant period. Having not done so, revenue authorities now cannot turnaround and allege that there was suppression, mis-statement on the part of appellant. 6.2 Secondly, the revenue authorities relied upon the batch card purportedly maintained by the appellant in respect of the said products, indicate that the correct classification of the product is under chapter 34. On perusal of the sai .....

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atter period. It is settled law that the case of classification of a product, the revenue has to play a proactive role, which is absent in the case in hand. 6.3 Thirdly, on a specific query from the bench, learned Counsel submits that the products in question in this appeal, are even today are cleared under chapter heading number 27.01. If that be so, the entire exercise of the reclassification of the product is of academic interest as there is no dispute which is before the Tribunal on the clas .....

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