2023 (2) TMI 67 - AT - Central Excise

Classification of goods - Super Mix Oil (first final product) - Super C-9 Plus (second final product) - classifiable under CET 27101990 as claimed by the appellant or under CET 27101190 as claimed by the department - SCN dated 15.11.2011 covering the period from December, 2006 to March, 2008 is barred by limitation, or not - liability to pay penalty equal to the duty amount under Rule 25 read with Section 11AC - levy of penalty on partner Shri Snehal Shah under Rule 26 of the Central Excise Rules, 2002. HELD THAT - The appellant have raised the very vital issue that it is an admitted fact by the department that by mixing of thermol and the input namely Mixed oil does not alter the nature of the product. If this be so, then how the activity amounts to manufacture however, the adjudicating authority without considering this vital issue jumped to the conclusion about the classification of the resultant goods. The classification will come into picture only once it is established that there is manufacturing however, in the present case the department itself is of contention that by entire process of mixing of thermol and mixed oil and any other product and thermol and C-9 Plus, there is no change in the nature of the product therefore, this aspect needs to be considered elaborately by the adjudicating authority. It is also a fact on record that input received by the appellant from IPCL Nagothane the classification was made under 27101990 then in such case how the resultant product attributed to the oil of IPCL Nagothane will be classified at par with the product arising out of oil of IPCL Dahej. This issue also needs to be reconsidered - It is the submission of learned counsel that there was chain of correspondence mentioned above in his submission therefore, there is no suppression of fact. This issue also to be reconsidered by the adjudicating authority therefore, the appeal of M/s. Shah Petroleums needs to be remanded. Penalty on partner of M/s. Shah Petroleums, Shri Snehal Shah - HELD THAT - Once a case was made out against partnership firm, no separate penalty can be imposed on the partner of such firm - penalty imposed on partner Shri Snehal A. Shah is not sustainable accordingly. Appeal allowed.

Summary

Issues Involved:
a) Classification of Super Mix Oil under CET 27101990 or 27101190.
b) Classification of Super C-9 Plus under CET 27079900 or 27101190.
c) Limitation period of SCN dated 15.11.2011.
d) Penalty liability of appellant under Rule 25 read with Section 11AC.
e) Penalty liability of partner under Rule 26 of the Central Excise Rules, 2002.

Analysis:

a) Classification of Super Mix Oil:
The appellant procured mixed oil from different sources, classified under different CET codes. The appellant added additives and cleared the product under CET 27101990. The department argued for classification under CET 27101190, citing no change in raw material characteristics. The Tribunal found the department's classification unsustainable due to lack of ASTM D 86 test results and upheld the appellant's classification.

b) Classification of Super C-9 Plus:
Similar to the first product, the department claimed classification under CET 27101190, alleging no change in product characteristics. The Tribunal emphasized the need for proof of manufacturing before classification. The appellant's classification under CET 27079900 was upheld due to the lack of evidence supporting the department's claim.

c) Limitation Period of SCN:
The appellant argued the SCN was time-barred, citing prior communication with the department. The Tribunal agreed, noting the appellant's cooperation and lack of willful suppression. The SCN was deemed time-barred.

d) Penalty Liability of Appellant:
The Tribunal found no duty payable due to lack of manufacturing change, rendering the penalty unsustainable under Rule 25 read with Section 11AC.

e) Penalty Liability of Partner:
The Tribunal referenced judgments stating no separate penalty on a partner if imposed on the firm. Following this, the penalty on the partner was deemed unsustainable, and the appeal was allowed.

The Tribunal remanded the case for reconsideration of classification and limitation issues, setting aside the impugned order. The partner's penalty was also set aside. The miscellaneous application for a change of address was allowed.