TMI Blog2017 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Central Excise Tariff which was different at the relevant time. Extended period of limitation - Suppression of facts - Held that: - The Commissioner (Appeals) held them guilty of suppression for not taking “initiative” and not consulting the department if they had any doubt while the appellants never stated that they had any doubt. In fact they have claimed that they were clearly of the view that their goods were classifiable where they classified them. The Commissioner (Appeals) has not mentioned anywhere as to what they suppressed which was required to be disclosed as per law. Not taking suo moto initiative has never been a valid ground for sustaining charge of suppression - The very fact that they have been paying duty as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly classified under 24039920 which is liable to be assessed under Section 4A ibid and hence the impugned demand and penalties. 3. The appellants have contended that: (i) After the introduction of eight-digit-based tariff, their product was more specifically classifiable under heading 24039960 as it was essentially a tobacco extract. (ii) It was classified as preparation containing chewing tobacco under heading 2404.41 during the six digit-based tariff regime as a more specific entry was not available at that point of time. The appellants described in detail as to how the product is manufactured and how it is not a preparation containing chewing tobacco as it cannot even be consumed, as observed even by the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classifications upto 2004-05. During this period, the appellant had classified its products under 2404.41 as Chewing tobacco and preparation containing chewing tobacco. W.e.f. 2005-06 the Central Excise tariff was changed to 8 digits. Further, w.e.f. 01.04.2006 the goods manufactured by the appellant were also notified for assessment on MRP basis under section 4A. The dispute is with reference to classification w.e.f. 01.04.2006. The department was of the view that the goods are liable to be classified as preparation containing chewing tobacco under 24039920 . However, the appellant classified the products under 2403 99 60 as tobacco extracts and essence and paid duty under section 4 of the Central Excise Act. 9. We find that the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion containing chewing tobacco at the time when the Supreme Court said they did, they would not be excludible from the said expression merely because of the passage of time. It is seen that under the eight digit tariff regime, preparations containing chewing tobacco are covered under tariff sub-heading 24039920. Consequently the impugned goods are thus classifiable under sub-heading 240399.20. Once the impugned goods are held classifiable under sub-heading 240399.20, their assessment admittedly has to be in terms of Section 4A ibid and therefore, prima-facie, the impugned demand is sustainable on merit. 11. The other grounds raised by the appellant are that they have not suppressed anything from the Department and have been filing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion for not taking initiative and not consulting the department if they had any doubt while the appellants never stated that they had any doubt. In fact they have claimed that they were clearly of the view that their goods were classifiable where they classified them. The Commissioner (Appeals) has not mentioned anywhere as to what they suppressed which was required to be disclosed as per law. Not taking suo moto initiative has never been a valid ground for sustaining charge of suppression. Indeed, this point is too well settled to warrant judicial citations like Cadilo Laboratires Vs. CCE Vadodara 2003 (152) ELT 262 (SC), Padmini Products Vs. CCE, Bangalore 1989 (4) SCC 275, CCE, Hyderabad Vs. Chemphor Drugs Linimeats 1989 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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