TMI Blog2018 (5) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... eparation 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 2403 99 20 - the impugned goods are thus classifiable under sub-heading 2403 99 20. Once the impugned goods are held classifiable under sub-heading 2403 99 20, their assessment admittedly has to be in terms of Section 4A ibid and therefore, prima facie, the impugned demand is sustainable on merit. Extended period of limitation - Held that: - since there is nothing on record to substantiate the fact that appellant had suppresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve contended that : (i) After the introduction of eight-digit-based tariff, their product was more specifically classifiable under heading 2403 99 60 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 in Para 19 of the judgment in the case of Dharampal Satyapal v. CCE, New Delhi - 2005 (183) E.L.T. 241 (S.C.). 4. The appellant have also argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tobacco . W.e.f. 2005-06 the Central Excise Tariff was changed to 8 digits. Further, w.e.f. 1-4-2006 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. 1-4-2006. The department was of the view that the goods are liable to be classified as preparation containing chewing tobacco under 2403 99 20 . 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 Hon ble Supreme Court in the case of Dharampal Satyapal v. CCE, New Delhi - 2005 (183) E.L.T. 241 (S.C.) had occasion to examine the classification of similar goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the passage of time. It is seen that under the eight digit tariff regime, preparations containing chewing tobacco are covered under tariff sub-heading 2403 99 20. Consequently the impugned goods are thus classifiable under sub-heading 2403 99 20. Once the impugned goods are held classifiable under sub-heading 2403 99 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 the ER-1 returns indicating classification of the impugned goods under 2403 99 60. Further, there is no allegation of any clandestine clearance and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt. 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 motu initiative has never been a valid ground for sustaining charge of suppression. Indeed, this point is too well settled to warrant judicial citations like Cadila Laboratories v. CCE, Vadodara - 2003 (152) E.L.T. 262 (S.C.), Padmini Products v. CCE, Bangalore - (1989) 4 SCC 275, CCE, Hyderabad v. Chemphar Drugs Liniments - (1989) 2 SCC 127. The very fact that they have been paying duty as per Section 4 also goes to show that prima facie they had no intention of hoodwink ..... X X X X Extracts X X X X X X X X Extracts X X X X
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