TMI Blog2015 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... owder was specifically covered under heading 1404 and would attract nil rate of duty. Irrespective of the merits of the department s case for classification of the goods, in question, under heading 3304, the longer limitation period of five years under proviso to section 11A(1) is not invokable and bulk of the duty demand would therefore to be time barred. Therefore, we are of the view that an amount of ₹ 20 lakh paid by appellant during investigation is sufficient for the hearing of the case and hence the requirement of the pre-deposit of the balance amount of duty demand, interest thereon and penalty by the appellant company and the requirement of pre-deposit of penaty by Sh. Vikas Gupta, Director of the appellant company is waived for hearing of their appeals and recovery thereof is stayed. - Stay granted. - Miscellaneous Application Nos. E/MISC/56396 & 56395/2014, Stay application no. E/Stay/54911/2014 & E/Stay/54940/2014 in Appeal No. E/54259/2014 and E/54318/2014-EX [DB] - Misc. Order No. 50960-50961/2015 In Stay Order No. 50970-50971/2015 - Dated:- 16-2-2015 - Shri Rakesh Kumar, Member (Technical) And Shri Ashok Jindal, Member (Judicial) For the Petitioner : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period from 1/9/2008 to 11/12/2012 against M/s. Neha Herbals Pvt. Ltd. under proviso to section 11A(1) of Central Excise Act, 1944 along with interest thereon under section 11AB and besides this, while penalty of equal amount under section 11AC was imposed on the Appellant Company, another penalty of ₹ 5 crore on Sh. Vikas Gupta, Director of the appellant company was imposed under Rule 26 of the Central Excise Rules, 2002. Since, the appellant had deposited an amount of ₹ 20 lakh during the investigation, the Commissioner by the impugned order appropriated this amount towards the duty demand. 1.2 Against the above order of the Commissioner, these appeals have been filed along with stay application. 2. Heard both sides in respect of stay application. 3. Sh. Hari Shankar, advocate, ld. Counsel for the appellant pleaded that the appellant, a private limited company, with Shri Vikas Gupta and Director had come into existence with effect from 1/5/2012 and prior to 1/5/2012, the factory was owned by M/s. Neha Enterprises, a proprietary concern of Sh. Vikas Gupta; that the appellant are re-packing henna powder into retail packs and also make heena cones which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the department, even after amendment with effect from 1/1/2007, continued to mention heena under sub-heading 1404, any assessee would be under impression that the heena is covered by heading 1404; that in these circumstances, even if it is assumed that w.e.f. 1/1/2007 Henna powder and henna cones were no longer covered by heading 1404 but were covered by heading 3304, the assessee cannot be accused of malafide when he did not pay duty on the goods, in question, under belief that his products are covered by heading 1404; that if limitation period under proviso to section 11A(1) is held to be not invokeable, except for a few days, the entire duty demand would be time barred and that in view of this, the amount already paid by the appellant is sufficient for hearing of the appeal. He, therefore, pleaded that the requirement of pre-deposit of balance amount of duty demand, interest and penalty may be waived for hearing of the appeal and recovery thereof may be stayed. 4. Sh. R.K. Grover. the ld. DR opposed the stay application by reiterating the findings of the Commissioner and pleaded that the non-payment of duty by the appellant was intentional, as the appellant during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bastard saffron) Kg. Nil 14041040 Dyeing substance, excluding turmeric Kg. Nil 14041050 Gallnuts Myrobalans: 14041061 Amla (embelica linn) Kg. Nil 14041069 Other Kg. Nil 14041070 Wattle bark (mimosa bark) Kg. Nil 14041090 Other tanning substances Kg. Nil 14042000 Cotton Linters Kg. Nil 140490 Other: 14049010 Bidi wrapper leaves (tendu) Soap-nuts Kg. Nil 14049021 Powder Kg. Nil 1404902 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /1/07 henna powder was specifically covered under heading 1404 and would attract nil rate of duty. 8. The product being received by the appellant unit form their sister concern in Uttrakhand were Neha brand herbal dye, mehendi, oil, etc, which are different products and not the powder of henna leaves. 9. In view of these circumstances, we hold that irrespective of the merits of the departments case for classification of the goods, in question, under heading 3304, the longer limitation period of five years under proviso to section 11A(1) is not invokable and bulk of the duty demand would therefore to be time barred. Therefore, we are of the view that an amount of ₹ 20 lakh paid by appellant during investigation is sufficient for the hearing of the case and hence the requirement of the pre-deposit of the balance amount of duty demand, interest thereon and penalty by the appellant company and the requirement of pre-deposit of penaty by Sh. Vikas Gupta, Director of the appellant company is waived for hearing of their appeals and recovery thereof is stayed. 8. The stay applications stands disposed off, as above. Misc. applications for early hearing of stay application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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