2019 (5) TMI 136 - AT - Central Excise

Validity of subsequent SCN - Classification of goods - printed sheets manufactured by the assessee and used in the packing of printed notebooks and magazines - extended period of limitation - HELD THAT - The Commissioner (Appeals), after considering the facts as well as the position of law, has held that the goods are rightly classifiable under Chapter Heading 4901. It is to be mentioned that in the assessee s own case in the previous proceedings, the Commissioner (Appeals) vide Order-in-Appeal No. 24/2012 dated 24.07.2012 held that the impugned goods are classifiable under Chapter Heading 4901. This being so, the subsequent Show Cause Notice alleging suppression of facts with intent to evade payment of duty cannot sustain - appeal dismissed - decided against Revenue.

Summary

Issues:
Department's appeal against the Commissioner (Appeals) order setting aside demand, interest, and penalties on merits and limitation.

Analysis:
The Department filed an appeal against the Commissioner (Appeals) order setting aside the demand, interest, and penalties on the grounds of merits and limitation. The Department argued that the printed sheets used in packing printed notebooks and magazines should be classified under Chapter Heading 4811 9099, while the Commissioner (Appeals) classified them under Chapter Heading 4901 with a "nil" rate of duty. The issue of invoking the provisions of a larger period was also raised, with the Commissioner (Appeals) noting that the Department was aware of the assessee's activities since a Show Cause Notice was issued for an earlier period overlapping with a subsequent notice.

The respondent's advocate argued that a previous Show Cause Notice for the period 2006-07 raised similar allegations, leading to duty confirmation under Chapter Heading 4811. However, the Commissioner (Appeals) set aside the demand, classifying the goods under Chapter Heading 4901 with no duty. The advocate highlighted that the second Show Cause Notice during the present proceedings overlapped with the earlier notice, citing a precedent that the larger period cannot be invoked for the same issue and facts.

Upon hearing both sides, the Tribunal noted that the Commissioner (Appeals) correctly classified the printed wrappers under Chapter Heading 4901. The Tribunal observed that the issue of classification was not raised in the Show Cause Notice, but the Original Authority addressed it. The Tribunal agreed with the Commissioner (Appeals) that the goods fell under Chapter Heading 4901, citing a previous decision in the assessee's case. The Tribunal held that the subsequent Show Cause Notice alleging suppression of facts could not be sustained as it was based on the same issue and facts, in line with a precedent set by the Hon'ble Apex Court. Consequently, the Tribunal found no fault in the Commissioner (Appeals) order and dismissed the Department's appeal.