TMI Blog2023 (2) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... r Shri Snehal Shah under Rule 26 of the Central Excise Rules, 2002. HELD THAT:- The appellant have raised the very vital issue that it is an admitted fact by the department that by mixing of thermol and the input namely Mixed oil does not alter the nature of the product. If this be so, then how the activity amounts to manufacture however, the adjudicating authority without considering this vital issue jumped to the conclusion about the classification of the resultant goods. The classification will come into picture only once it is established that there is manufacturing however, in the present case the department itself is of contention that by entire process of mixing of thermol and mixed oil and any other product and thermol and C-9 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) Whether Super C-9 Plus (second final product) is classifiable under CET 27079900 as claimed by the appellant or under CET 27101190 as claimed by the department. c) Whether the SCN dated 15.11.2011 covering the period from December, 2006 to March, 2008 is barred by limitation. d) Whether the appellant is liable to pay penalty equal to the duty amount (Rs.1,49,05,855/-) under Rule 25 read with Section 11AC. e) Whether the partner Shri Snehal Shah is liable to penalty of Rs.20,00,000/- under Rule 26 of the Central Excise Rules, 2002. 02. Shri Willingdon Christian, learned counsel appearing on behalf of the appellant made the following submissions:- i) The relevant period is from December, 2006 to March, 2008. ii) For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid facts :- c) Tariff Descriptions : 2707 - Oils and other products of the distillation of high temperature coal tar similar products in which the weight of the aromatic constituents exceeds that of the non-aromatic constituents 2707 10 00 - Benzol (benzene) 2702 20 00 - Toluol (toluene) 2707 30 00 - Xylol (xylenes) 2707 40 00 - Naphthelene 2707 50 00 - Other aromatic hydrocarbon mixtures of which 65% or more by volume (including losses) distils at 250 C by the ASTM D 86 method -Other 2707 91 00 - Creosote oils 2707 99 00 - Other 2710 Petroleum oils and oils obtained from bituminous minerals, other than crude; preparations not elsewhere specified or included, containing by weight 70% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also in the Show Cause Notice) that the basic characteristics and structure of the raw material have not changed by adding Thermol as an additive and that the raw materials characteristics remain the same in the finished products. This finding of fact has remained unassailed, as the Department has not filed any Appeal against the impugned Order. When that is so, the entire demand becomes unsustainable in law. 2. Department's classification claim - not correct :- The proposed re-classification of the two final products under sub-heading 27101190 cannot be sustained, because it applies to light oils and preparations vide sub-heading 271011. According to Chapter Notes-4 of Chapter 27, for the purposes of sub-heading 271011, lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and their classification, rates of duty, manufacturing process, etc. f) The Appellant's letter dated 6.1.2009 informing the Department for part payment of differential duty through Cenvat Credit Register. g) In support of the submissions on limitation, the Appellant also rely upon the following judgments :- 1994 (4) RLT 526 (SC) Tamil Nadu Housing Board Vs. CCE 1995 (78) ELT 401 (SC) Pushpam Pharmaceuticals Company Vs. CCE 1995 (6) RLT 333 (SC) Cosmic Dye Chemical Vs. CCE 1989 (40) ELT 276 (SC) CCE Vs. Chemphar Drugs Liniments 4. No penalty is leviable :- For the aforesaid reasons, penalty imposed on the Company under Rule 25 read with Section 11AC is also not sustainable. 5. No separate penalty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered elaborately by the adjudicating authority. It is also not clear that the department has applied the classification of 27101190 on the basis that the input falls under the same CTH and due to no change in the nature of the product, the classification will remain same. 05. However, it is also a fact on record that input received by the appellant from IPCL Nagothane the classification was made under 27101990 then in such case how the resultant product attributed to the oil of IPCL Nagothane will be classified at par with the product arising out of oil of IPCL Dahej. This issue also needs to be reconsidered. The learned counsel vehemently argued on the limitation as the period involved is December, 2006 to March,2008 whereas, the show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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