2014 (2) TMI 636 - AT - Central Excise

Classification - product pentane cleared by the appellant under sub heading 2711.19 of the Central Excise Tariff as other petroleum gases and other gaseous hydrocarbons - revenue issued SCN after audit objections classifying under sub heading 2710.90 - Held that - product pentane cleared by the appellant under sub heading 2711.19 of the Central Excise Tariff as other petroleum gases and other gaseous hydrocarbons and paying Central Excise duty @ 8% ad valorem after availing of the benefit of sl. No. 24 of notification No.6/2000-CE dated 1.3.2000 and sl. No.34 of notification No.3/2001-CE dated 1.3.2001 - The pentane disputed product, in question is being classifiable by other units of M/s. GAIL India under sub-heading 2711.19 only. They have also filed the same classification. If the Revenue was not in agreement with the said declaration of such classification, it was open to the officers to raise the objection to the same and to initiate proceeding for change in classification. SCNs proposing change in classification from 2711.19 to 2710.90 was issued because of Audit objection. The Department had initially classified the Pentane under Chapter sub-heading 2711.19 only. The above technical aspect was explained to Audit and they have accepted the technical aspect and have agreed to classification under 2711.19 and audit objection has been closed. I am also in agreement with the technical description of Pentane and its correct classification under 2711.19. In view of the settlement of dispute, the show cause notice in question deserves to be dropped - there was no suppression or misstatement on the part of the appellant so as to justifiably invoke the longer period of limitation - Decided in favour of assessee.

Summary

Issues:
Classification of the product 'pentane' under the Central Excise Tariff and the imposition of duty and penalty. The main contention is whether the product should be classified under sub-heading 2711.19 or 2710.90 of the Central Excise Tariff.

Detailed Analysis:

1. Classification Dispute and Limitation Period:
The Commissioner confirmed a demand of duty and penalty against the appellant for classifying 'pentane' under sub-heading 2711.19 and paying duty at 8% ad valorem. The Revenue argued that the correct classification was under sub-heading 2710.90, attracting a higher duty rate. The appellant contended that the demand was time-barred due to the classification declaration and approvals received for 'pentane' under sub-heading 2711.19. The Tribunal noted that other units of the same company classified 'pentane' under sub-heading 2711.19, and objections should have been raised if the Revenue disagreed with the classification.

2. Misdeclaration and Suppression Allegations:
The Revenue invoked a longer limitation period, alleging misdeclaration and suppression by the appellant. However, the Tribunal disagreed, citing a detailed order by the Commissioner in a similar case where no objections were raised to the classification of 'pentane' under sub-heading 2711.19. The Tribunal emphasized that the appellant had provided detailed information and the Revenue had the opportunity to correct any misclassification but failed to do so.

3. Legal Precedents and Decisions:
The appellant relied on various legal precedents, including Supreme Court judgments, to support their argument that claiming classification under a different heading does not constitute suppression of facts. The Tribunal also considered another decision by the Commissioner regarding the Vijaypur unit of the appellant, where a similar issue was resolved in favor of the appellant due to technical explanations.

4. Conclusion on Limitation and Suppression:
Based on the evidence presented and legal arguments, the Tribunal concluded that there was no suppression or misstatement on the part of the appellant. Therefore, the longer period of limitation was unjustified. The appeal was allowed solely on the point of limitation, setting aside the impugned order and providing consequential relief to the appellant.

In the final judgment pronounced on 12.11.2013, the Tribunal ruled in favor of the appellant, emphasizing the importance of correct classification, lack of suppression or misstatement, and the Revenue's failure to object to the classification of 'pentane' under sub-heading 2711.19.