TMI Blog2016 (5) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals) essentially on the ground that the appellant did not take registration and clear the goods without payment of duty. In case of CCE vs. Chemphar Drugs Liniments [1989 (2) TMI 116 - SUPREME COURT OF INDIA], the Supreme Court held that something positive other than mere inaction or failure on the assessee's part or conscious withholding of information when assessee knew otherwise is required for invoking extended period. In the case of Continental Foundation Joint Venture Vs CCE, Chandigarh-I [2007 (216) ELT 177 (SC)2007 (8) TMI 11 - SUPREME COURT OF INDIA], the Supreme Court went to the extent of saying that any incorrect statement by itself cannot be equated with willful mis-statement. Therefore, in the light of these judicial pronouncements, we are of the view that the allegation of willful misstatement / suppression of facts is also not sustainable in the present case. Consequently demand pertaining to the period beyond the normal period of one year will also be hit by time bar. - Decided in favour of appellant - Excise Appeal No.E/2900/2005-EX [DB] & Excise Appeal No.E/2901/2005-EX [DB] - FINAL ORDER NO. 51325-51326/2016 - Dated:- 8-3-2016 - MR. S.K. MOHANTY, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacture of coated calcite powder and cleared the same without payment of duty. It had not taken any registration also. On a visit to the factory, the Central Excise Officers found 143 M.T. of calcite powder which was placed under seizure on the ground that it was classifiable under C.T.H. 3824.90 leviable Central Excise to duty at the rate of 16% ad-valorem. The Lower Adjudicating Authorities held that the goods were classifiable under 3824 90 and that the appellant indulging in willful misstatement/ the suppression of facts did not pay duty thereon and accordingly confirmed the impugned demand alongwith interest and penalties as above. 4. The appellant has contended as under:- (i) It was manufacturing calcite power which was classifiable under CTH 25.05 liable to nil rate of duty. It added stearic acid only upto 1% not for the purpose of coating but for the ease of grinding only. (ii) The initial chemical test reports clearly opined that the goods were classifiable under C.T.H. 25.05 and it was only the last report which opined that the goods were covered under CTH 3824.90. (iii) It is a classification dispute and even Chemical Examiners reports were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Examiner It is seen that subsequently, the chemical examiner gave further report on 05.05.2000 in respect of 3 varieties of impugned goods, wherein he opined that calcite powder jet filler and cyclone filler was classifiable under Chapter 25 but calcite powder jet cyclone filler was classifiable under 3824.90. These 3 sample reports are reproduced below:- 136-CHUM/Misc./J/94/CLJ/Misc./147/9-2-2000/5-5-2K Report The sample is in the form of white powder. It is essentially composed of Calcium Carbonate together with small amount of siliceous matter (Silicates of Magnesium and Aluminum). Content of Calcium Carbonate = 95.9 % by weight The test findings indicate the sample under reference to be calcite powder- a mineral. In view of the specific query put up regarding classification under CETA it is classified that the same finds mention under chapter 25. Sealed remnant sample returned herewith. FORWARED to:- THE INSPECTOR/SUPRINTENDENT CENTRAL EXCISE DIVISION CHEMICAL EXAMINER 5.5.2000 142, B HIRAN MAGRI, SECTOR -11 UDAIPUR - 313002 RAJASTHAN Copy may be forwarded to the concern ASSTT. Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese 3 types of calcite Powders was essentially the same. This gives credence to the appellant s contention that it added upto 1% of steric acid for the purpose of ease of grinding as it decreases the friction effect. We also notice that the percentage of fatty matter required for coated calcite powder is about 2.8 to 3.2% for the purpose of paints and 2 to 3.5 percent in case of the powder used for rubber as per Indian Standard Specifications for calcium carbonate for paints and for rubber industry respectively (Copy right 1978 and 1977 of Bureau of Indian Standards). From the above Chemical reports it is evident that the chemical examiner has not been very consistent with regard to the classification of the impugned goods. The description of C.T.H. 25.05 is reproduced below:- Heading No. Sub-headding No. Description of goods Rate of duty 25.05 2505.00 Mineral substances not elsewhere specified (including clay, earth colours, natural abrasives, sulphurs, slate and stone), lime; plasters with a basis of clcium sulphate, whether or not coloured, but not includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduct out of the purview of Chapter 25 of the Tariff. This coupled with the fact that the chemical examiners report states that the calcite powder is coated by fatty matter and is hydrophobic in character clinches the issue in favour of the Department. There can be no grounds for interfering with the adjudicating authoritys findings that the goods are classifiable under sub-heading 3824.90 of the Tariff and not under Chapter 25. 9. Coming to the question of penalties, I find that the appellants have manufactured and cleared excisable goods without being registered with the Central Excise Department, without declaring the same to the Department and without payment of duty. This has been done with intent to evade duty payment. In as much as the appellants are correctly liable to penalty in terms of Section 11AC of the Act. The confiscation of 143 MT calcite powder is also accordingly upheld. From the above - quoted paragraphs, it has evident that the Commissioner (Appeals) has noted that the appellant is not seriously disputing the fact that the manufacturing process of their product involved apart from crushing, grinding other process as well such as roasting. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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