TMI Blog2018 (7) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... idence to substantiate the claim. Appeal allowed - decided in favor of appellant. - Appeal No. E/690/09 - A/86727/2018 - Dated:- 8-6-2018 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri Shrehik Gandhi, Advocate for the appellant Shri H.M. Dixit, AC (AR) for the respondent ORDER Per: Raju This appeal has been filed by Alpha Foam Pvt. Ltd. The facts of the case are that four show-cause notices were issued to the appellant from December 1997 to November 1999 which were adjudicated by two order-in-original dated 05.07.1999 and 08.01.2000. The matter travelled to Commissioner (Appeals) disposed here vide two different Order-in-Appeal dated 31.12.2002 and 9.02.2003. Tribunal vide orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) seriously erred in relying upon the HSN description, and did not appreciate the fact that the Tariff heading 3824 of Central Excise Tariff Act, 1985 was not aligned fully with HSN during the raid period. He argued that his failure to appreciate the matter has vitiated the impugned order, which deserves to be quashed and set aside on this ground alone. 3. He further argued that the Dy. Chief Chemist report was submitted in 1997 but the same was given to the appellant in the year 2007. In these circumstances, the said report cannot be relied. He further argued that the said report is not final and had directed that additional material should be submitted to the chemist for further analysis. No further samples were submitted to Dy. Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssification, it is not open to original adjudicating authority to decide the issue suo motu without going back with the said clarification to the office of the chemical examiner. The Commissioner (Appeals) has in his order observed that the technical basis of the Dy. Chief chemist is quite clear whereas the report itself shows that the office of chemical examiner is not clear about the classification and needs further clarification before arriving at final decision. It is seen that the onus of establishing the change of classification is on revenue and from the records it is apparent that revenue has been unable to produce sufficient evidence to substantiate the claim. 7. In these circumstances, we are unable to uphold the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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