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2017 (7) TMI 1022 - RAJASTHAN HIGH COURTClassification of goods - “Ujala Supreme” Fabric / Laundry Whitener - Entry 119 of Schedule-IV Part-B instead of Schedule-V - classifiable under Tariff Entry No.3204.12.94 of the Central Excise Tariff Act, 1985? - Held that: - Both the Appellate Authorities have given a finding that the said product “Ujala Supreme” is classifiable under Entry 69, Sub-Entry 119 of Part-B of Schedule-IV of the Act of 2003. From the facts noticed hereinbefore and analysed earlier, the Entry starts with “Synthetic Organic Colouring Matter” and, therefore, any preparation based on “Synthetic Organic Colouring Matter”, should in my opinion, will also fall in the said Sub-Entry 119 referred to hereinbefore. The Apex Court, time and again, in the cases of Western India Plywood Ltd v. Collector of Customs [2005 (10) TMI 90 - SUPREME COURT OF INDIA], Dunlop India Ltd. v. Union of India [1975 (10) TMI 94 - SUPREME COURT OF INDIA], has reiterated the well settled proposition that resort to Residuary Tariff Entry can only be made if a product does not squarely fall within any of the specified Entries, and a good deal of caution is required to be undertaken in the matter of classification, identification of an Entry and a description thereof would be relevant for assigning it to a particular Tariff Entry, and lodgment of an item in Residuary Category is approvable only if by no conceivable reasoning which can be brought within the purview of any other tariff item, and the burden always lie on the Revenue, if it intends to carry it to the Residuary Schedule. Penalty u/s 61 - Held that: - no case of penalty is made out. Merely because an addition was made by the AO, is no reason for initiating penalty proceedings or even levying penalty. Admittedly, it is a case where the assessee claimed a lower rate and claiming to be falling in a specific Entry and Revenue intended to carry it to Residuary Entry, that does not mean that a case of concealment has been made out by the Revenue - the Apex Court in the case of Sree Krishna Electricals v. State of Tamil Nadu & Another [2009 (4) TMI 428 - SUPREME COURT OF INDIA], has held that in a case of classification of Entries, two views being possible, question of levy of penalty does not arise. Appeal dismissed - decided against Revenue.
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