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2017 (4) TMI 792 - CESTAT NEW DELHI

2017 (4) TMI 792 - CESTAT NEW DELHI - TMI - Classification of goods - quilts - misdeclaration - whether during the material period respondent had intentionally evaded duty on the quilts manufactured and cleared while classifying the same under Heading 58.11 and claiming the benefit of N/N. 30/2004-CE? - Board Circular dated 20.10.2009 - Held that: - there was a general practice in the trade to classify the product under Chapter 5811 while in some other places, it has been classified under Chapte .....

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t be faulted with - the respondent has made out a case for setting aside the demand of duty only on the ground of limitation as has been held by the first appellate authority - appeal dismissed - decided against Revenue. - Central Excise Appeal No.55410 55411 of 2013 with Cross-Objection No.56769 56770 of 2013 - A/52119-52120/2017-EX[DB] - Dated:- 28-2-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. V. Padmanabhan, Member (Technical) Present Shri H.C. Saini, A.R. for the Appellant -Reve .....

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fiable under Tariff Heading No.9404 under the brand name of others but was not discharging duty liability on the product by classifying the same under Tariff Heading No.5811 and claiming ineligible exemption under Notification No.30/2004-CE dated 9.7.2004. The officers of DGCEI visited the premises of the respondent and carried out search and resumed documents. A show cause notice was issued to the appellant demanding duty for the period 2006 - 2007 to 2008-09 (upto December 2008) holding mis-cl .....

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setting aside the confirmed demand. It is his submission that the first appellate authority has erred in holding that the appellant was under bona fide belief that the products are exempted under Notification No.30/2004 classifying the same under Chapter Heading No.5811. It is his further submission that first appellate authority has wrongly relied upon the CBEC s Circular No.903/23/2009-CX dated 20.10.2009. He draws our attention to the said Circular and submits that the Circular mentions that .....

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of the impugned Order-in-Appeal. It is his further submission that the letter referred to by the ld. A.R. for, in the grounds of appeal is nothing but a letter which was given to the investigating authority stating that they have classified the product under Heading 5811 and if the said classification of the product is under Heading 9404, they would do so, subject to outcome of the case and has also mentioned in the letter that if any duty is payable, they would discharge the same. He draws our .....

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Greaves Ltd. vs. C.C.E. & Cus., Aurangabad - 2015 (322) ELT 772 (SC) and C.C.E. vs. Minimax Industries - 2011 (269) ELT 166 (Del.). 5. On considering the submissions made by both sides and on perusal of the record, we find that the issue that falls for consideration is whether during the material period respondent had intentionally evaded duty on the quilts manufactured and cleared while classifying the same under Heading 58.11 and claiming the benefit of Notification No.30/2004-CE. 6. We fi .....

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no penalty can be imposed. In this regard, I observe that it is a fact on record that there existed divergent practice regarding classification of textile quilts articles as is evident from the Board Circular No.903/23/2009-CX dated 20.10.2009, wherein it has been stated in the opening paragraph that the general practice as per the trade has been to classify the products under Chapter 5811 and that practice at some places has been to treat these products as classifiable under Chapter 94. Thus, .....

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fide doubt as to non-excisability of goods due to divergent view, extended period of five year is not invocable as no evidence of any fraud, collusion, willful mis-statement or suppression of facts available with the department. 7. It can be seen from the reproduced paragraph that the first appellate authority has considered the issue from all angles and h also followed the Board Circular dated 20.10.2009. We have perused the Board Circular. We find that the said Circular categorically in respec .....

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