TMI Blog2018 (12) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... ved finally under Heading 3926.90. The approved classification list cannot be modified with retrospective effect. Extended period of limitation - Held that:- As the classification list was approved finally the demand cannot be raised by invoking the extended period of limitation treating the assessment to be provisional, which is not apparent from the facts and records of the case. Appeal allowed - decided in favor of appellant. - Excise Appeal No. E/164/2009 - FO/A/76923/2018 - Dated:- 11-7-2018 - Shri P.K. Choudhary, Member (Judicial) And Shri Bijay Kumar, Member (Technical) Shri Ravi Raghavan, Adv. for the Appellant (s) Shri S. Mukhopadhay, (AR) for the Respondent (s) ORDER Per Bijay Kumar 1. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions of the Hon ble Supreme Court before the Adjudicating Authority including the decision of the Apex Court in the case of C.C.Ex. Bangalore vs. Mysore Electricals Industries Ltd.-2006(204) ELT 517(SC), which has been cited before us. As per remand order these cases were re-heard by the Ld. Commissioner and the impugned order was passed thereafter. 2. The issue involved in these cases are regarding the classification of reprocessed granules (RPG) as to whether under heading 3902.10 and chargeable to duty or under 3926.90 with the benefit of Notification No. 15/94 CE dated 1/3/94 chargeable to Nil Rate of Duty. The appellant had been engaged in the manufacture of BOPP films, waste and scrap of plastic and reprocessed granules (RPG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and furnishes of bond of security etc., the assessment cannot be treated as provisional unless and until an order is passed by the proper officer treating the assessment as provisional. To this effect reliance has been placed on the following decisions: i. Metal Forging vs. UOI 2002(146) ELY 241(SC) ii. CCE vs. Hindustan Glass Industries 2005 (182) ELT 12 (SC) iii. CCE, Bhopal vs. Presvels Pvt. Ltd 2015 (329) ELT 347(Tri-Del.) iv. CCE vs. Tan India Ltd. 2006 (206) ELT 863 (Tri-Chennai) v. Indian Telephone Indus. Ltd. Vs. CCE, Calicut 2006(201) ELT 177 (Tri.- Bang) 5. Further reliance was also placed on CBEC Circular No. 26/89 dated 24/4/89 and Circular No. 13/19-CX/6 dated 25/5/19 wherein it has been clarified that in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation cannot be invoked since the classification lists were finally approved on 8/9/1994. Further it was also submitted that retrospective amendment of Section 11(A) of the Act by the Finance Act, 2000 does not entitle the Department to reopen approved the classification and closed assessment beyond the normal period of limitation. 7. In view of the above submissions, it was stated that when the demand itself is not sustainable, there is no question of payment of interest and levy of penalty on the appellant. 8. Ld. AR on behalf of the appellant reiterated the ground contained in the impugned order for the confirmation of the demand. 9. We have considered the rival submissions and perused appeal records. 10. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his order that as the assessee has executed B-13 bond, the entire assessment has to be treated as provisional and the Department can raised the demand beyond the normal limitation period on this ground alone. However, on the perusal of the record and submission made by the appellant it is crystal clear that in this case no order of the provisional assessment has been made under Rule 9(B) of the Central Excise Rules, by the proper officer and in absence of which there is no question of treating the assessment as provisional assessment as has been held in the impugned order. We also find that the amendment to the Finance Act, 2000, does not give Department power to levy of Central Excise duty retrospectively in cases were the re-classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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