TMI Blog2018 (1) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... ntermediate products which are not capable of being used by the infants as such nor are they marketed for infants. They are supplied to the industrial consumers to make it fit for infants. The impugned products are not fit for use of infants as such - capability of use of the products, marketability of the products and the actual supply of the products to industrial user show that the impugned products are not fit for infant use - the products in question, namely, extruded wheat/rice, flour wheat crunch, rice crunch, etc. would be correctly classifiable under tariff sub heading 1901.19. Time limitation - Held that: - the appellant has been filing regular declaration under Rule 173B of the Central Excise Act, 1944 - as the fact of declaration made by the appellant was in the knowledge of the Revenue in support of this evidence produced by the appellant which shows name of the buyer is an industrial consumer. In that circumstance, the extended period of limitation is not invokable as all the facts were in the knowledge of the department that the classification/declaration filed by the appellant is in respect of the goods under chapter heading 1901.11 - extended period not invocabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, classification sought by the Revenue under chapter heading 1901.19 is of no use, the demands are not sustainable against them. He further submits that the appellant were regularly filing their declarations and they have declared that the said goods have been cleared by them as food preparations put into unit containers of 30/10 kgs for use of infant and the said classification has been accepted by the range officer after due verification. In that circumstance, the show cause notice is barred by limitation as the same has been issued by invoking the extended period of limitation. He further submits that the appellant were regularly filing ER-3 returns which are in the knowledge of the Revenue, therefore, the extended period of limitation is not invokable in view of the decision of this Tribunal in the case of Accurate Chemicals Industries Vs. CCE-2014 (300) ELT 451 (T) which has been affirmed by the Hon ble Allahabad High Court reported in 2014 (310) ELT 411 (All). 4. On the other hand, learned AR supported the impugned order and submitted that it is fact on record the appellant is supplying the goods to industrial consumers who used these goods and manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said goods for use of infant. The entry is quite clearly shows that the goods should be the food preparations put into unit container for infant use. Therefore the goods qualify for classification under chapter heading 1901.11 Therefore, on merits, we hold that the appellant has correctly classified the goods under chapter heading 1901.11. Issue No.(b) 9. On limitation, we find that the appellant has been filing regular declaration under Rule 173B of the Central Excise Act, 1944. The said declaration is extracted below:- 10. We further find that on 7.11.2000, the Superintendent made query to the appellant for affirmation of classification/declaration filed by them and in reply to the said letter, the appellant has stated vide their letter dated 19.1.2001 which was received by the Range Superintendent on 23.1.2001 as under:- The Superintendent, Central Excise Range-II, Gurgaon. Sub: Classification declaration under Rule 173B of the Central Excise Rules, 1944-C/R Dear Sir, Please refer to your office letter C- No.CE-20/Misce/KF1/187/1962 dated 7.11.200 on the subject cited above. We admit that we are manufacturing and clearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... succeeds on merits as well as on limitation. The impugned order is set aside and the appeal is a allowed with consequential relief, if any. (Dictated and pronounced in the court) Per: Devender Singh 11. While agreeing with the learned brother Member (Judicial) on the issue of limitation and allowing the appeal on limitation as entire period is beyond normal period of limitation, on the issue of classification, on merits, I hold in favour of the Revenue on the following basis:- 12. I find that that the impugned goods are under tariff heading 1901 which consists of preparation of food which are put into unit container but the tariff heading has two sub categories namely, one for infant use and other which implies not for infant use. So essentially the question is whether the impugned products made by the appellant are capable of use for infants. Admittedly, the products made by the appellant is an intermediate products which are not capable of being used by the infants as such nor are they marketed for infants. They are supplied to the industrial consumers to make it fit for infants. The impugned products are not fit for use of infants as such. On this, there is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
