TMI Blog2017 (6) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... on Notification for such goods for the subject period, the goods are liable to duty for the period prior to 05.12.2008 - But the duty is payable for such goods only for the normal period as there were interpretation issues involved during the relevant period. The appellants, therefore, cannot be charged with “suppression or misrepresentation of the facts with an intention to evade payment of duty of Central Excise - demand confirmed for normal period. Interest - section 11AB of CEA, 1944 - Held that: - Tribunal's decision in case of Aarti Drugs Ltd Vs Commissioner, Central Excise Thane-II, [2015 (9) TMI 1206 - CESTAT MUMBAI], referred whereunder it held that where there is no mis-statement on the part of the assessee duty is payable only for normal period but interest is payable under section 11AB for the amount of duty upheld. For the purpose of quantification of demand, matter remanded to original adjudicating authority - appeal allowed by way of remand. - E/3378, 3379, 3548/2010, 1234/2011 & 2836-2840/2012- Ex.DB - A/53960-53968/2017-EX[DB] - Dated:- 4-6-2017 - Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) S/Sh. Amit Jain, Kr Vikram, Ms Ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, input (sugar) as well as (boora, mishri, makhana and batasha) fall under the same chapter heading 1701.39 of C.Ex.Tariff and attract the same rate of duty. ii) In the present case, no new or different article is emerging; there is change in physical form only; there is no change in the chemical composition of Sugar or its essential character or use. iii) Hon ble Delhi High Court in the case of Nangumal Ram Kishore (1981) 48 STC 277 holds that conversion of sugar into mishri and patasha is merely sugar made into another shape and that there is no conversion except in the shape. iv) Tribunal in the case of CCE Jaipur-I Vs Nagad Narayan Food Products, 2012 (284) ELT 628 (Tri.-Del.) holds that making of Prasad and Mishri from sugar does not amount to manufacture of a new product, hence duty cannot be charged by classifying them under headings 1704.90 or under any sub- heading of 1701. v) Without prejudice to other submissions if duty is held payable, appellants would be entitled to Cenvat credit of duties paid on sugar used for conversion into the subject products. vi) Sale price of goods is required to be considered as cum-duty. The denial of cum-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions like sweetmeats, confectionery and candies will classifiable under Heading 1704. 7. The Apex Court in case of Sakarwala Brothers has held that patasha, hardas, bura sugar and alchidana are forms of sugar. The court stated that it is possible to convert these articles into sugar by dissolving them in water and by subjecting the solution to an appropriate process. Further these articles can be put to the same use to which sugar-candy can be put. It is, therefore, manifest that patasa, harda and alchidana are only different forms of refined sugar with the requisite sucrose contents. 8. The classification of these items, has been decided by the. Tribunal in the following cases and it has been held that these products are classified under heading 1701. (a) 1996 (84) E.L.T. 221 (T) - D.C.M. Shriram Industries v. C CEx, Meerut (b) 2006 (203) E.L.T. 232 (T) - C C. EX Aurangabad v. Shrijee Heavy Projects Works Ltd. (c) 2007 (210) E.L.T. 681 (T) - Atul Industries v. C C. Ex., Pune 9. However, Tribunal has in case of S.M. Confectionery - 1993 (66) E.L.T. 469 decided that items like Chironjidana, Mishri, Rewadi, Batasha are more appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Apex Court in the case of Empire Industries Ltd Vs Union of India, - 1985(20) ELT No.179 (SC). The Hon ble Supreme Court in the said decision in respect of concept of manufacturing has observed as under: 37. It may, however, be pointed out that when Darling J. dealt with the example of a carpenter, the learned judge thought it was right that it could not be said that when 'box' is prepared that the carpenter was manufacturing `wood' but transforming `wood' into `box' would certainly be manufacturing 'boxes'. It is well-settled that one cannot absolutely make a thing by hand in the sense that nobody can create matter by hand, it is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view is a question depending upon the facts and circumstances of the case. Plain wood is certainly different from `box' made of wood. Rindley J. it may be pointed out, disagreed with the view and observed at page 362 of the report that where any proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, cannot be charged with 'suppression or misrepresentation of the facts with an intention to evade payment of duty of Central Excise.' 10.3 Therefore, the demand of duty is confirmed only for normal period . The extended period of limitation is not invokable and penalty also cannot be imposed upon the appellants. 10.4 However, interest is payable as per the provisions of then section 11AB of Central Excise Act, 1944. In this regard, we refer to Tribunal s decision in case of Aarti Drugs Ltd Vs Commissioner, Central Excise Thane-II, 2015 (324) ELT-594 (Tribunal Bombay) whereunder it held that where there is no mis-statement on the part of the assessee duty is payable only for normal period but interest is payable under section 11AB for the amount of duty upheld. The Tribunal in the said case inter alia observes as under:- 7. . Therefore, there being no mis-statement, duty is payable only for the normal period of time limitation. For the same reason that extended time period is not applicable, confiscation, fine and penalty are also not sustainable. However, interest would be payable under section 11AB corresponding to the amount of duty upheld. ..... 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