TMI Blog2016 (3) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... liberate suppression of facts. We are not able to agree with such conclusion. It is an admitted fact that the appellant has declared the nature of raw material and the nature of final product. They had in their assessment and clearance documents mentioned the classification as was done for many years. In the matter of classifying the product, the assessee followed their understanding. When the material facts are disclosed, a particular classification followed by the appellant will not make a case for suppression. The Hon’ble Supreme Court in the case of [Desons Pultretaknik (2003 (1) TMI 115 - SUPREME COURT OF INDIA )] held that merely claiming a classification under a particular heading cannot be a willful misstatement or a suppression of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lass fabrics. The Department contended that such item is classifiable under tariff heading 70199090 and not under tariff heading 59119090. Classification is relevant to decide the availability of exemption under notification 29/2004-CE. SCN cum Demand notice was issued to the appellant to re-classify the product under heading 7019 and to deny the exemption. The proceedings concluded with the issue of order in original dated 9.5.2007. The Original Authority held that the correct classification of dust collection bags manufactured out of woven glass fabrics will be tariff heading 70109090 and denied the exemption and confirmed demand for the period 9.7.2004 to 28.11.2006. He also imposed equal amount of penalty on the appellant. Aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oven fabrics on certain technical issues. There were regular audits on their records and the classification of goods as mentioned in their documents and invoices are always open for scrutiny. The ER-1 return filed prior and post 2004 contained the same type of material information and there is no deliberate suppression of any fact from the Department in any of the returns. There are many cases when the dust collection bags made out of glass fabrics were returned to the factory and D-3 intimations were filed by them for further reprocessing. All the details regarding challan, invoice and the nature of goods returned for reprocessing are available in the declaration. There was a case against the appellant for wrong availment of modvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent demand. Regarding declarations filed under Rule 173B and Rule 57G and Rule 173H of the erstwhile Central Excise Rules, 1944, the Original Authority held that these declarations were in compliance of the conditions/ requirements of the respective Rules and cannot be taken as information provided in respect of other set of Rules. For this, he relied on Apex Court decision in the case of [Grauer weil (India) Ltd. 1994 (74) ELT 481 SC]. We find in the said decision the Hon ble Supreme Court was dealing with declarations by the appellant which were incorrect and misleading. The appellant in that case had made various declarations which are factually found to be wrong and misleading. In the present case, there is no such allegation of misl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abric (b) certain audit objections regarding cenvat eligibility and these glass fabrics (c) duty paid invoices and other documents maintained by the appellant (d) the continued classification of the impugned product for many years under Chapter 59 will all go to show that alleging fraudulent intend against the appellant for evading Central Excise duty by availing ineligible exemption notification is not sustainable. We find that the Original Authority also emphasized that in self assessment system, the assesse should have intimated the Department about the correct classification or eligibility of exemption under the said notification. By claiming an unavailable exemption the appellant was held to be indulging in suppression. We find such al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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