TMI Blog2006 (5) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to adduce contrary evidence in support of its claim that the classification of the penetrator manufactured by the assessee is not covered under tariff item No. 3402.90. It is also settled law that the onus or burden to show that the product falls within a particular tariff item is always on the Revenue. Thus the impugned judgment of the Tribunal is clearly erroneous and unsustainable. In the circumstances, we find merit in the contentions urged on behalf of the appellant-assessee. We are also of the view that the Tribunal has erred in interfering with the Order-in-Appeal No. 2/94(H)(D)CE of the Collector (Appeals) dated 28-2-1994 and Order-in-Original No. 191/91 of the Assistant Collector dated 26-12-1991. In favour of assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wrong impression. The classification list dated 6-5-1986 was approved by the Assistant Collector on the basis of the note given by the Chemical Examiner in his Report dated 6-10-1981 which came to the knowledge of the assessee in the year 1986. Therefore, the assessee changed the classification to the appropriate tariff item. 3. A Show Cause Notice (SCN) dated 4-6-1991 was issued by the Revenue directing the assessee to pay a sum of Rs. 1,24,094.45p. as central excise duty for the period May, 1986 to September, 1990 invoking larger period under Section 11A of the Act. During pendency of the proceedings, the Revenue drew another sample of the product of the assessee and sent it to the Central Revenue Control Laboratory (CRCL) at Delhi to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity of the order of the Collector (Appeals). The Tribunal, however, allowed the appeal of the Revenue and set aside the original order-in-appeal as also the Order-in-Original holding that the goods manufactured by the assessee were not commercially and popularly known as surface active agents and they were different products, commercially having different names, character and use than the surface active agents from which the goods were produced. It was observed that the surface active agents were one of its raw materials and the finished penetrator could not be considered for excise purpose as surface active agents. 5. In the present appeal, it is contended by Mr. Tushar Rao, the learned counsel for the assessee that the Tribunal has i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise, Chennai [(1977) 1 SCC 215]. 7. We have gone through the ratio of the said decision. In our opinion, this judgment can be of little assistance to the Revenue. As noticed in the earlier part of the judgment, the assessee has classified the goods in question, under tariff item No. 68 of the old tariff from 1980 to 1986 attracting 15 per cent ad valorem duty being regularly paid by it. With the introduction of new tariff in 1986, the assessee started clearing Penetrator 4893 under Heading 3801.19, as finishing agents, Dye Carriers to accelerate the dying or fixing of dye stuff and other products and preparation of a kind used in textile, paper, leather or like industries not elsewhere specified or included. The assessee on 5-5-1986 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that the Chief Chemist, CRCL vide his letter dated 2-4-1992 had given clear and positive opinion that the Penetrator 4893 manufactured by the assessee and forwarded to the Laboratory by Assistant Collector, Hyderabad, vide letter dated 20-7-1991 was "composed of organic solvent, non-volatile residue having surface active properties and water." From the said opinion of the Chief Chemist, it cannot be disputed that the goods manufactured by the assessee possessing surface-active properties are classifiable under tariff item No. 3402.90. The Collector (Appeals) in his order observed that no evidence has been led by the Revenue to show that Penetrator 4893 manufactured by the assessee acts as a finishing agent to be classified under Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed under tariff item No. 3402.90. It is also settled law that the onus or burden to show that the product falls within a particular tariff item is always on the Revenue. [See: Commissioner of Central Excise, Calcutta v. Sharma Chemical Works [(2003) 5 SCC 60] and Commissioner of Central Excise, Nagpur v. Vicco Laboratories [(2005) 4 SCC 17]. 9. In our view, the impugned judgment of the Tribunal is clearly erroneous and unsustainable. In the circumstances, we find merit in the contentions urged on behalf of the appellant-assessee. We are also of the view that the Tribunal has erred in interfering with the Order-in-Appeal No. 2/94(H)(D)CE of the Collector (Appeals) dated 28-2-1994 and Order-in-Original No. 191/91 of the Assistant Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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