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TMI Blog2023 (7) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... appeared this time also on this date. Learned AR also objects to giving more time, to appellant. It is therefore decided that the matter is to be taken up for decision on merits. 2. The issue involved in this case is regarding classification, which the party claimed was for the product "Un-Coated Calcite Powder" is under Tariff Heading No. 25309030. 3. As against this Department after test report by the chemical analysis found the product to be precipitated Calcium Carbonate. The test report which is part of the Order-In-Original is reproduced at para 4 on pg. 101, as follows: "4. The test memo bearing No.125/15-16 dated 04.09.2015 was sent to the Chemical Examiner, Kandla and the result was received on 09.09.2015 with a finding as "Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red that the goods under reference were Calcium Carbonate and not the declared goods and (ii) the report of the Chemical Examiner who categorically opined that the goods in question are Precipitated Calcium Carbonate. It is a matter of common knowledge that the word "precipitated" preceding to Calcium Carbonate itself indicates that the goods under reference are not obtained as natural resources and thus classifiable under Chapter 25 but it is a manufactured item, classifiable under Chapter 28. As per Wikipedia (https://en.wikipedia.org/wiki/Calcium carbonate}. Water is added to give calcium hydroxide then carbon dioxide is passed through this solution to precipitate the desired calcium Carbonate, referred to in the industry as precipitated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bald statement cannot come to their rescue. In thos regard, I find that Hon'ble High Court of Himachal Pradesh, in the case of Commissioner of Central Excise. Vis. International Cylinders Pvt. Ltd. [2010 (255) E.LT. 68 (H.P.)] have held that Burden shifts to manufacturer once Department proves something illegal being undertaken. 16. Another argument repeatedly made by the said Appellants in this regard is that their request for re-test was declined and the authority's action of not sending goods (i.e, sample) to re-testing has created entire controversy. In this regard, it is needless to mention here that findings given above while answering question about violation of natural justice very well hold good here too. To question th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the said Appellants have not brought on record any worthy argument calling for consideration to alter the conclusion drawn by the lower adjudicating in classifying the goods under reference under CTH 28309030. 18. In so far as valuation of the goods is concerned, it is argued that value is enhanced without any evidence of contemporaneous imports available at relevant time with the son quantity etc. parameters and in absence of it, valuation declared cannot be discarded. to the relevant Para (ix) in this regards, it is also mentioned that "since the same mistake husb committed by the Appellate Commissioner, in the present case, impugned order is required to be quashed." Further, it is also mentioned that "....though this is a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not bonafide but was with a knowledge that the assessee was required to act otherwise, penalty might be imposed. The peculiar facts of the instant case are that preliminary examination of the goods distinctly and clearly indicates mis-declaration, subsequent chemical test conducted by the independent agency i.e. the Chemical Examiner at Kandia, reveals to confirm that the goods under reference are quite distinct to what has been declared. When faced with such facts and circumstances, it is argued that they declared so since the documents of die Supplier indicated so. At the same time, it is also argued that supplier does not have any facility to manufacture but exclusion is made to the grinding process since it was beneficial to them. On ..... X X X X Extracts X X X X X X X X Extracts X X X X
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