2005 (1) TMI 705 - AT - Central Excise

Classification of goods - guise of Twine of synthetic fibres - suppression and mis-representing the facts - evasion of duty - penalty - appellant classified as 'Twine' falling under CH 5607.50 - Commissioner, classified the goods as Sewing Thread falling under CH 54.01 - HELD THAT - It is very clear that the adjudicating authority has made out a new case beyond the proposals in the Show Cause Notices. We also find that in all the documents, the appellant has indicated that the impugned goods are Twine. In view of this, it is very difficult to sustain the charge of suppression of facts. In the light of the above observations, invocation of longer period under proviso to Section HA(1) is not correct. Further it is seen that for the period from March 1995 to February 1997, the department initiated proceedings by issue of 4 Show Cause Notices wherein the Department did not question the classification of the product. Even if the goods are classified as 'Multiple (folded) Yarn', as contended by the party, they would be exempted under Notification 8/96 and 5/98. Hence, the OIO deserves to be set aside. We allow the appeals with consequential relief.

Issues:
The issues involved in the judgment are the classification of goods, suppression of facts, reliance on Chief Chemist's Report, constructive res judicata, applicability of exemptions, imposition of penalty and interest.

Classification of Goods:
The appellant was proceeded against for clearing goods under the wrong classification. The original authority confirmed this and demanded duty under proviso to Section 11A. The appellant argued that the impugned order went beyond the proposals in the Show Cause Notice, leading to a new case being set up by the Department. The appellant contended that the goods should be classified as Twine based on trade understanding and documents issued by both parties. The Tribunal found that the adjudicating authority had indeed made a new case beyond the proposals, contrary to settled law, and set aside the Order-In-Original (OIO).

Suppression of Facts:
The appellant argued that there was no justification for invoking a longer period as all facts were before the Department and no suppression had occurred. The Tribunal agreed, stating that it was difficult to sustain the charge of suppression of facts, especially considering that the Department had not questioned the classification of the product in previous proceedings.

Reliance on Chief Chemist's Report:
The appellant raised concerns about the Department relying on the Chief Chemist's Report during de novo proceedings, which was issued before the Show Cause Notice. The Tribunal noted that this reliance to make a new case was illegal and supported the appellant's argument.

Constructive Res Judicata:
The appellant argued that the present proceedings were barred by the principles of Constructive Res Judicata, as the Department had previously initiated proceedings for similar goods and dropped them. The Tribunal agreed, stating that the authorities are estopped from taking a different stand based on the same materials.

Applicability of Exemptions:
The appellant claimed that the goods were exempted under Notification 8/96-CE and 5/98-CE. The Tribunal found that even if the goods were classified as 'Multiple (folded) Yarn', they would be exempted under these notifications, further supporting the appellant's case.

Imposition of Penalty and Interest:
The appellant argued that penalty and interest were not imposable based on the above submissions. The Tribunal, after considering all arguments and findings, allowed the appeals with consequential relief, setting aside the OIO.

This judgment highlights the importance of adhering to the proposals in Show Cause Notices, avoiding new cases beyond the scope, and considering all relevant factors before imposing penalties and interest.

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