TMI Blog2023 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued on 10.06.2003; it cannot be inferred that the appellants have changed the classification with a view to avail undue benefit; even if such a proposition is accepted, the intent to change the classification was informed to the department in March 2003 itself; the Department was free to cause necessary verification and to change the classification; the argument that verification took long time because of the procedures involved like testing by the agencies, cannot be a reason to allege suppression of fact; there should be a positive act of suppression, wilful mis-statement with an intent to evade payment of duty so as to attract the provisions of Section 11A for invoking the extended period - the Department has not produced any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.15 vide letter dated 28.03.2003; the respondents filed a declaration dated 12.03.2004 showing their intent to avail the benefit of Notification No.50/2003 dated 10.06.2003; the respondents continued to classify their products under CETSH 26.15; Revenue challenged the classification and an OIO dated 30.06.2006 decided the classification under CETSH 28.25; on an appeal filed by the respondents, Commissioner (Appeals) allowed the appeal and held that the impugned product merits classification under CETSH 26.15; on an appeal filed by the Department, CESTAT vide Final Order dated 24.06.2008 allowed the appeal filed by the Department and held that the impugned products merits classification under CETSH 28.25. 2.1. Meanwhile, the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods were cleared on the basis of an exemption notification. 4. Learned Counsel for the respondents submits that they have submitted the declaration before the Department on 12.03.2004 showing their intent to avail the benefit of exemption Notification No.50/2003 and classifying the impugned products under CETSH 26.15; thereafter, there was a continuous correspondence between the respondents and the appellants regarding the classification of goods; the Department was in the knowledge of the classification adopted by the respondents; therefore, no allegation of suppression of fact etc. can be levelled against the respondents. He further submits that the Department did not challenge the benefit of SSI Notification as allowed by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellants have changed the classification with a view to avail undue benefit; even if we accept such a proposition, the intent to change the classification was informed to the department in March 2003 itself; the Department was free to cause necessary verification and to change the classification; the argument that verification took long time because of the procedures involved like testing by the agencies, cannot be a reason to allege suppression of fact; there should be a positive act of suppression, wilful mis-statement with an intent to evade payment of duty so as to attract the provisions of Section 11A for invoking the extended period. We find that the Department has not produced any such evidence to that effect. 7. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. 8. Regarding the cum-duty price, we find that the Department relies upon the decision in the case of Amrit Agros (supra). The learned Counsel for the respondents, however, submits that the decision in the above case is rendered in the context of un-amended Section 4 and therefore, the same is not applicable. We find that the Hon ble Apex Court in the case of Amrit Agros (supra) held as follows: 15. In our view, in the facts and circumstances of the case the judgment of this Court in the case of Bata India Ltd. (supra) on principle would apply. Therefore, in the present case, the assessee will have to show as to how he has determined the value. What the appellant has really done in the instant case has to be examined. Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges. Therefore, it is to be understood that the CENVAT duty is not paid and is not recovered. For example, in case of Invoice No.000047 dated 19.05.2004, total assessable value is shown at Rs.6,30,000/- after adding CST/ GST @ 1% i.e. Rs.6,300/- plus freight of Rs.19,800/-, the invoice value is shown at Rs.6,56,100/-. Thus, the total invoice value subsumes the CENVAT duty. Accordingly, the value adopted requires to be considered as a cum-duty price. For this reason, we uphold that benefit of cum-duty is available to the respondents. 10. In view of the above, we hold that the extended period is not invokable and cum-duty benefit is available to the respondent. The appeal is allowed to that extent in above terms. ( Pronounced on 30/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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