TMI Blog2022 (3) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected the claim on time bar submitted by the appellant before him on the ground that the issue of time bar was raised first time before the Commissioner (Appeals) - HELD THAT:- It is a settled law that issue of limitation can be raised at any stage, being a mixed question of law and facts. Therefore, the Commissioner (Appeals) order on limitation is incorrect and illegal. Now, the issue on limitation is examined from the facts of this case. The appellant under bona fide belief have been claiming that STD-PCO and EPROMs are classifiable separately and EPROMs is under Exemption Notification No. 84/1989-CE dated 01.03.1989. The appellant have been filling the classification list wherein they have separately classified both the items and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opularly called STD-PCO) at its factory located at Gandhinagar. The appellant Mr. MadhuKumar A. Mehta is Managing Director of Anjaleem Enterprises Pvt. Ltd. The software for the said STD-PCO was developed and recorded by the appellant on Medium/Memory Chips or EPROMs (Erasable, Programmable Read only Memory). The unrecorded medium (EPROM) was purchased by the appellant and the program for the STD-PCO was recorded thereof. The STD-PCO was classifiable under CETH No. 8517.00 which covered Electrical Apparatus for line telephony. As regards the EPROMs, the appellant had bona fide belief that since the same was Recorded Media (i.e. media recorded with software), the same was correctly classifiable that recorded media under CETH 8524.90 and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir other factory at Vadodara, similarly proceeding was carried out. At Tribunal stage, it was held against the appellant in that case, which was reported at ANJALEEM ENTERPRISES PVT. LTD.VS. CCE 2001(137) ELT 1190. The said decision of the Tribunal was upheld by Hon ble Supreme Court has reported in ANJALEEM ENTERPRISES PVT. LTD. VS. CCE-2006 (194) ELT 129(SC). The Adjudication Authority after considering the Appellant s reply passed order dated 28.11.2008, whereby confirmed the charges made in the Show Cause Notice and also confirmed the demand and imposed penalty, personal penalty was also imposed on Mr. Madhukumar A. Mehta under Rule 209-A. Being aggrieved by the Order in Appeal the appellant filed the present appeal. The appellant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he further submits that in the present case the issue involved is the classification and involved interpretation of law. For this reason also neither larger period is invocable nor is the penalty imposable. In support of her submission, she placed reliance on the following judgments: Anjaleem Enterprises P. Ltd v CCE-2001 (137) ELT 1190 Anjaleem Enterprises P. Ltd v CCE-2006 (194) ELT 129 (SC) Anjaleem Enterprises P. Ltd v CCE 2002 (140) E.L.T. 163 CCE v Harish Industries Engineers-2008 (223) ELT 651 Brakes India Ltd v CCE-1999 (111) ELT 38. Kusum Ingots Alloys v CCE-2001 (137) ELT 550 National Organic Chemical Indus Ltd v CC-2000 (126) ELT 1072 Upheld in commissioner v National Organic Chemical Indus Ltd-2002 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onger under dispute for the reason that in the appellant own case the Hon ble Supreme Court in case reported at ANJALEEM ENTERPRISES PVT. LTD. VS. CCE-2006 (194) ELT 129(SC) decided the matter against the appellant. The limited issue to be decided in the present appeal is by that whether demand of duty raised in the Order In Original and upheld in the impugned order is time bar or otherwise. In this regard I find that the commissioner (Appeals) rejected the claim on time bar submitted by the appellant before him on the ground that the issue of time bar was raised first time before the Commissioner (Appeals). It is a settled law that issue of limitation can be raised at any stage, being a mixed question of law and facts. Therefore, the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f intention to evade duty on the STD/PCO machine by suppressing the real value of the product. Now, the classification list filed by the appellant for the years from 1988 claiming classification of the product under Heading 85.24 with the benefit of Notification 84/89 had been approved by the department. The Department was therefore fully aware that the appellant claimed classification of the goods differently from the main machine in which it was fitted. The relevant information required for assessment therefore had not been suppressed; nor could it be said in these circumstances that there was an intention to evade payment of duty. There can be no evasion since the goods were removed in pursuance of an approved classification list. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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