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TMI Blog2023 (9) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... t is in appeal claiming that for certain products the classification claimed by them was correct and therefore to that extent the appeal has to be allowed. 2. The learned counsel on behalf of the appellant put forth the following submissions: 2.1 The Commissioner in the impugned order at para 44.4 classified the products as follows: Sl.No. Product As classified by M/s. FCIPL Now reclassified under CSH 1 Conbextra GP series 38244090 38245090 2 Conbextra AT 38244090 38245090 3 Conbextra HES 38244090 38245090 4 Conbextra HF 38244090 38245090 5 Conbextra HR 38244090 38245090 6 Conbextra UHS 38244090 38245090 7 Conbextra UW 38244090 38245090 8 Expocrete EC 38244090 38245090 9 Nitobond SBR 38244090 38245090 10 Nitoflor Hardtop/Hardwear/Level Crete 38244090 38245090 11 Superpatch 38244090 38245090 12 Renderoc 38244090 38245090 13 Epoxy Nitozinc Primers 38244090 38245090 14 Reebaklens 38244090 34022090 15 Nitoflor SOL 38244090 34022090 16 Conbextra EP series 382440 32149020 17 Conbextra EBGM 382440 32149020 18 Exposeal UW 382440 32141000 19 Expocrete EUW 382440 32149010 20 Nitocote SN Series 382440 321490 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the classification. It is also submitted that these 14 products are required to be assessed under Section 4A of central Excise Act 1944 on account of reclassification. However, since these products are supplied in bulk and sold to industrial consumers/institutional consumers in large quantities, MRP is not applicable in terms of Rule 2A of the Standard of Weights and Measures (PC) Rules, 1977 and Rule 3 of Chapter II of the Legal Metrology (Packaged Commodities) Rules, 2011. Hence, they request for valuation under Section 4 as against the Section 4A as claimed by the Revenue. Sl.No. (as in para 2.1) Product As classified by M/s. FCIPL Now reclassified under CSH 21 Nitocote VF 382440 32149090 22 Nitofill EPLV 382440 32149090 23 Colpor 382440 32149090 24 Decofill 382440 32149090 40 Nitoseal 382440 32149090 41 Nitotile EPW 382440 32149090 42 Nitotile GP 382440 32149090 43 Nitotile Grout 382440 32149090 44 Nitotile GTA 382440 32149090 45 Nitotile MPA 382440 32149090 47 Pimers 20, 4, 7E 382440 32149010 48 Thioflex GG/PG 382440 32149090 49 Dekguard S/Std/S300 382440 32149090 50 Nitocote AP/EP/UR 382440 32081090 2.4 In re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.) 2.5 It is also submitted that the appellants have been regularly filing the classification list as required under Rule 173B of the erstwhile Central Excise Rules, 1944 and the Department had approved such classifications filed from time to time under the heading 3824 of Central Excise Tariff Act, 1985. Appellants also claimed that they were regularly filing the monthly RT-12/ER-1 Returns with the concerned Range Officers and audit officers visited their units at regular intervals. In view of the above, they cannot be alleged with suppression of facts with intention to evade payment of duty and therefore the duty needs to be redetermined only for the normal period. 3. The authorised representative of the Department reiterating the findings of the Commissioner submits that the Commissioner was right in classifying the products and invoking suppression in as much as the appellant had wilfully suppressed the classification of the products in dispute. Findings in respect of Appeals Nos. E/21481/2014 and E/21712/2014: 4. Heard both sides in detail. On perusal of the records of the case, we find that the issue to be considered in the present case relates to classification of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of invoices before us in Volume-1A and on perusal of these invoices, we find that the observations made by the Commissioner in the impugned order appears to be correct. Moreover, in none of these invoices, quantity cleared is above 25 kgs/25 litres and clearly marked as 2.9 kgs or 2.7 kgs which are seen to be in small packages. Perusal of some of the invoices, show that in invoice No. BNGMI 03085 10-11 dated 31.08.2010 for the item 'Nitocote', the quantities cleared to Karan Agencies are 2.7 kgs and 4L. Similarly, in the case of 'Colpor' product, vide Invoice No. BNGMI 02765 10-11 dated 18.8.2010, the quantities cleared to Sri. Mitra Consultancy Services are 3L, 3.2kg cleared; and for the product 'Dekguard' cleared to Shashwath Solutions vide Invoice No. BNGMI 02053 10-11 dated 14.7.2010 the quantities are 20L. Under no stretch of imagination, these clearances can be considered as clearances made to industrial consumers in bulk packages and therefore, the observations made by the Commissioner are factually correct and hence, the assessment under Section 4A is appropriate. Therefore, we uphold the classification of the above 14 products as accepted by the Revenue and the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits remains the same as discussed above with regard to 54 products manufactured by the appellant, out of which classification with regard to 13 products have been accepted and with regard to 14 products as listed at para 2.4 though the classification has been accepted by the appellant but they have disputed valuation under Section 4A. However, as per our discussions supra, the valuation by the Commissioner under Section 4A has been upheld. With regard to 27 products (as mentioned in para 2.4), the matter is being remanded for de novo adjudication based on our observations as discussed above.
6. The appeals are disposed of as follows:
(i) Appeal No. E/21481 & 21712/2014 are allowed by way of remand for re-determining the classification and valuation for the 27 products and to examine the evidences placed by the appellant afresh on suppression and other ingredients to invoke proviso to Section 11A.
(ii) Appeal No. E/20158/2019, the demand for 14 products is upheld and remanded to re-quantify the demand for these products. With regard to 27 products, to re-examine the classification and valuation of the products as discussed above.
(Order pronounced in Open Court.) X X X X Extracts X X X X X X X X Extracts X X X X
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