TMI Blog2018 (11) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... sive. Appeal dismissed - decided against Revenue. - APPEAL No. E/609/2008-EX[DB] - A/72226/2018-EX[DB] - Dated:- 7-8-2018 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Mohd. Altaf (Asstt. Commr.) AR for Appellant Shri Rajesh Chhibber (Advocate) for Respondent ORDER Per: Archana Wadhwa Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. 2. As per facts on record, M/s BSM Petrochem (P) Ltd., Vill.- Saini, Mawana Road, Disstt. Meerut, (hereinafter referred to as the party ) having Central Excise Registration No.AACCB1826AXM001 for the manufacture of (i) Organic Composite Solvent and Thinner (ii) Solvent dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not fall under Sub-heading No.3814.00, as it covers organic composite solvents and thinners, not elsewhere specified or included; and prepared paint or varnish removers. Solvents manufactured by the party are obtained by fractional distillation of mineral oils which have specifically been covered by Chapter No. 27. Further, the raw materials being used by the party fall under Chapter 27, and the distillation of the same do not change their chemical composition and even blending of 2% Benzene, MTO or SBP do not affect the composition of the product because party itself informed that the same are used just to maintain the quality of the solvents and therefore, industrial solvents appeared to have been covered under Chapter 27 and not under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thinner. In the case of sale of their product they availed exemption under Notification No.09/2003 dated 01.03.2003, as amended and have paid Basic Excise duty @9.6% i.e. 60% of the normal rate applicable to the product. In respect of the product captively consumed in the manufacture of thinner, they have availed exemption under Notification No.67/95-CE dated 16.03.1995. During the period October, 2003 to May, 2004 the party blended 9.26% of the other solvents i.e. Benzene, MTO in the quantity of industrial solvents produced by them. Therefore, it appeared that addition of 9.26% of Benzene, MTO and SBP to industrial Solvent did not change the composition of the industrial solvents produced, consumed and cleared as thinner was nothing but i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recoverable on the quantity cleared/consumed capitvely. Similarly thinner having same process of manufacture fall under the category of Industrial Solvent and classifiable as motor spirit under Chapter heading 2710.13. (ii) Whether the noticee has suppressed the material facts from the department with intent to evade payment of special excise duty alongwith education cess on the same and extended period for recovery of the said duty under first proviso of the Section 11A of the Act is invocable. 4. While dealing with the same the Adjudicating Authority held in favour of the assessee by observing as under:- 4.2 I find that the case of the noticee is similar to the case of M/s Jagdamba Petroleum (P) Ltd., Noida. The Learned Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnition engine. Though flash point of the product is below 25 C, the goods should also meet the requirement of being suitable for use as fuel in spark ignition engine for classifying the same under Chapter Heading No. 2710.13 hence decision of the adjudicating authority classifying the goods under Sub-heading No.2710.13 is not sustainable. The impugned order does not have anything in rebuttal of classification claimed by the noticee. The Tribunal classified the products under Chapter Heading No.2710.90 and 2713.30 as claimed by the noticee. The department filed Civil Appeal before the Hon ble Supreme Court against the above Final Order of the Hon ble CESTAT but the Court dismissed the appeal vide order dated 09.04.2007 and held that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er BSM T-2. 4.5 Further, in view of the Chemical Test reports, referred above, read with the decision of the Hon ble Tribunal I am convinced that all the industrial solvents produced and cleared on payment of duty or used captively are correctly classified by the noticee and the department do not have any basis to classify the same under motor spirit and therefore neither any differential duty is recoverable from the noticee nor any penal action against them is warranted. 5. Revenue in their memo of appeal have not rebutted the above findings of the Adjudicating Authority by production of any evidence. Their only contention is that the Adjudicating Authority has not made any independent status/verification in the matter to confi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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