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2016 (1) TMI 204 - CESTAT MUMBAI

2016 (1) TMI 204 - CESTAT MUMBAI - TMI - Classification of chemicals - assessee was classifying under CSH 2942 or 2943 - department was of the view that the said products are classifiable under CSH 3402, 3904 or 3906 and liable to duty - manufacturer of water treatment chemicals, boiler water treatment chemicals, fuel additives, fire side chemicals, resins etc. - extended period of limitation - Held that:- during the period from April 1993 to June 1995 classification lists being approved by the .....

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none of the products are removed without appropriate classification and the knowledge of the Revenue. If that be so, we find strong force in the arguments put forth by the learned Counsel that the demands are hit by limitation.

Since the issue involved in this case is of classification dispute, to our mind no penalty needs to be imposed on any of the appellants as the classification lists were approved by the department and there was no dispute during the material time. Accordingly, .....

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e relevant facts that arise for consideration are M/s Thermax Ltd., (the main appellant) is manufacturer of water treatment chemicals, boiler water treatment chemicals, fuel additives, fire side chemicals, resins etc. On the basis of some intelligence that the main appellant evaded Central Excise duty by wrongly classifying their few products, officers of the DGCEI conducted an investigation and the samples of the products were drawn which were sent to the Deputy Chief Chemist, Mumbai for chemic .....

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ble under CSH 3402, 3904 or 3906 and liable to duty. Accordingly, differential duty was demanded with interest and also proposed to impose penalty on all the appellants. Appellants contested the show-cause notice. The adjudicating authority after following due process of law, confirmed the demands raised with interest and also imposed penalties on all the appellants. On appeal, the first appellate authority remanded the matter back to the adjudicating authority to reconsider the issue afresh. 2. .....

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submission that for the period in question, they have contested the issue on limitation. He would submit that a show-cause notice was issued on 29th April, 1998 demanding differential duty for the period April 1993 to December 1997. He would submit that during the period in question appellant had filed various classification lists of the products claiming the classification as is understood by them. It is his submission that during the period in question no samples were drawn nor any objection .....

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iling classification list was discontinued and filing of declaration was brought into statute they did so by giving cross reference of the earlier approved classification list. It is his submission that the entire demand be set aside on the ground of limitation. 4. Learned D.R. on the other hand would submit that the appellant had mis-classified the product with intention to evade duty. It is his submission that the appellant had not disclosed the composition of the products correctly and for de .....

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identifies the product as acrylic polymer in primary form which was falling under Chapter 39 of the Central Excise Tariff Act, 1985 (CETA). He would submit that the Hon ble Supreme Court in the case of Mercantile Company v. CCE - 2007 (217) ELT 330 (S.C.) has stated that when the department is not having full knowledge of the activities, limitation angle cannot be raised. He also relies upon the judgement of the Apex Court in the case of Quinn India Ltd. - 2006 (198) ELT 326 (S.C.) for the propo .....

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the Revenue that these products merit classification under Chapter 39. The main appellant has also proposed that the demand is hit by limitation. 6.1 Instead of going into the merits of the case and classification of the products, as correctly stated by the Learned Counsel that it may be of academic interest, we take up the appeal for disposal on the question of limitation. 6.2 We find that the period involved in this case is from April 1993 to December 1997 and the show-cause notice is issued .....

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roved by the Proper Officer and the said claim has not disputed by both the lower authorities. The first appellate authority has suggested in the impugned order that the appellant did not give any information regarding the raw material composition, chemical composition, manufacturing process, printed literature etc. to the department to arrive at the correct classification. In our considered view and on perusal of the records, we find that the main appellant had given the process of manufacturin .....

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wn against department from the fact that the said classification lists were approved finally, would mean that the appellant had submitted all the relevant information required for the approval of classification list of the products manufactured by them. In the absence of any evidence indicating otherwise, the findings recorded by the first appellate authority that the appellant had not given various raw material composition, chemical composition etc. seems to be presumptive and without any basis .....

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