TMI Blog2003 (10) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Advocate, further, submitted that the Central Board of Excise and Customs has clarified vide Circular No. 5/86 that tamarind seed powder could be regarded as a product of the milling industry in terms of the broad Heading under Chapter 11 of the Central Excise Tariff and that except for tamarind powder which is in packing for retail sale for prophylactic or therapeutic purposes, tamarind seed powder or TKP would be correctly classifiable under sub-heading 1101.90 of the Tariff. 3.1He also mentioned that the sole ground given by the Department for classifying the product under Heading 13.01 is the HSN Explanatory Notes to Heading 13.02; that Heading 13.01 of Central Excise Tariff covers lac; natural gums, resins, gum resins and oleoresins; that as per HSN Explanatory Notes, the items covered under Heading 13.01 are as under :- (a) Lac which is a resinous substance produced on several kinds of tropical trees by an insect. (b) Natural gums, resins, gum resins and oleoresins which are vegetable secretions which may solidify on contact with air. 3.2He mentioned that thus the gums specified under Heading 13.01 are natural secretions from trees and veget ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E, Vadodara, 2001 (135) E.L.T. 1388 (T) wherein it has been held that "the mere fact of some chemical change in the product may not by itself satisfy the requirement laid down that the change in a resulted new, commercially distinct product emerging, which is the condition to say that manufacture has taken place. There are numerous decisions that not all chemical change does not amount to manufacture." 5.Finally, the learned Advocate submitted that the demand cannot be made, for longer period of limitation; that the appellants have duly filed classification declaration and the process of manufacture for their Bhiwani unit; that such a declaration was also filed for Viramgam unit (though without the process of manufacture); that non-filing of process of manufacture at Viramgam was a bona fide clerical mistake for which no mala fide can be alleged; that it has been held by the Supreme Court in CCE, Hyderabad v. M/s. Chemphar Drugs Liniments, 1989 (40) E.L.T. 276 (S.C) that whether there was any fraud or wilful misstatement or suppression is a question of fact depending on the facts and circumstances of each particular case and mere non-declaration of goods did not amount to any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chemical change brought by air blowing of bitumen at high temperature only resulted in increase of its softening point which did not result in emergence of another product completely different in nomenclature, structure and use. 7.The learned Senior Departmental Representative, further contended that the impugned product is no more a product of milling industry warranting classification under Heading 11.01 of the Tariff; that TPK purchased by the appellant is a product of milling industry; that the said TPK is put to chemical process by the Appellants which brings into existence a new product known as printing gum and as such it is no more a product of milling industry and squarely falls under Heading 13.01 which applies to all types of gums. He also mentioned that Board's Circular No. 5/86, dated 14-8-86 is not applicable to the impugned product as it is a changed/modified product as a result of processes undertaken by them. He finally submitted that the extended period of limitation is invocable as they have misdeclared their product as TKP and not gum and in addition have suppressed the manufacturing process which they are legally required to furnish along with the classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the Board's Circular F. No. 10/18/86-CX.I, dated 14-8-86 wherein it has been clarified as under : "Heading No. 11.01 of the new tariff covers products of the milling industry including flours, groats, meal and grains of cereals, and flour, meal or flakes of vegetables. It is seen that under the HSN, sub-heading 1106.30 covers flour, meal and powder of the products of Chapter 8 of HSN (viz., edible fruits and nuts peels of fruits, etc.). HSN Explanatory Notes which amplify the scope of the aforesaid sub-heading 1106.30 specify that powders, meal or flours of nuts or fruits of almonds, dates, bananas, coconuts and tamarind are covered by the sub-heading . The notes also state that the heading does not cover tamarind powder in packings for retail sale for prophylactic or therapeutic purposes (Heading 30.04). It is seen that while the broad Chapter Heading for Chapter 11 of HSN as well as Chapter 11 of the Central Excise Tariff is common viz., "products of the milling industry, malt, starches, insulin, wheat gluten" there is no specific entry under Chapter 11 of the Central Excise Tariff covering flour, meal and powder of products of Chapter 8 corresponding to sub-heading No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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