TMI Blog2016 (8) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... not produced any specific evidence(s) to prove that there has been deliberate suppression on the part of the assessee appellant with intention to evade payment of Central Excise duty. Therefore, the Revenue can charge differential duty only for the period of one year preceding to the relevant date and for quantification of said differential duty for period of one year chargeable from the appellant the matter deserves to be remanded to the original adjudicating authority. - Appeal partly disallowed and partly remanded back - Excise Appeal No. 2129 of 2009, Excise Appeal No. 1857 of 2009 and E/C.O.214/2009 - Final Order Nos. 53007 53008/ 2016 - Dated:- 12-8-2016 - Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rely on various case laws in support of their submissions on the issue of classification as well as on the issue of invocation of extended period clause for charging duty for the period of five years. 3. Ld. DR, Sh. Yogesh Agarwal for the Revenue on the issue of classification reiterated the findings and reasonings given by the lower authorities and states that both the subject items deserve classification under chapter heading 2106 90 99 as the Food Supplement. 6. We have carefully considered the facts of the case on record and the submissions made alongwith the case laws cited by both sides. M/s Drytech Processors (I) Pvt. Ltd. states that both the items in question are Homogenous Composite Food Preparations to be classified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of visible pieces of ingredients (emphasis supplied). In the light of above Chapter Note, we find that the items factually are neither for retail sale as infant food nor these are for dietetic purposes in terms of the wordings used in note 3 of Chapter 21 of Central Excise Tariff. The items in question are actually in the category of food supplement which is evident from the respective literature of the items, which is on record. Chapter heading 2106 are for the food preparations not elsewhere specified or included. Within this chapter there is no specific entry for the items in question except 2106 90 99. In this regard, we are agreeing with the findings and reasons given by the lower authorities. 4.1. Further, we quote below fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under Chapter Heading 2106.90 99. 5. The other issue is for demand of differential duty for the period of five years invoking the extended period clause. Revenue contends that there has been suppression on the part of the assessee namely M/s Drytech Processors (I) Pvt. Ltd. However, we find that Revenue has not produced any specific evidence(s) to prove that there has been deliberate suppression on the part of the assesse appellant with intention to evade payment of Central Excise duty. In this regard, we agree with the findings of Commissioner (Appeals) given in the impugned order. Therefore, the Revenue can charge differential duty only for the period of one year preceding to the relevant date and for quantification of said differen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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