2006 (5) TMI 91 - SC - Central Excise

Whether the Tribunal has ignored the Reports of the Chemical Examiner dated 6-10-1981 and that of the Chief Chemist, CRCL dated 2-4-1992 without assigning any cogent reason in the absence of any rebuttal evidence overriding the said Reports? Held that - The assessee has adduced cogent and convincing evidence to show that the expression occurring in tariff item No. 3402.90 of the Act should be understood in the sense in which the persons who deal in such goods understand it normally. The Revenue has failed to adduce contrary evidence in support of its claim that the classification of the penetrator manufactured by the assessee is not covered under tariff item No. 3402.90. It is also settled law that the onus or burden to show that the product falls within a particular tariff item is always on the Revenue. Thus the impugned judgment of the Tribunal is clearly erroneous and unsustainable. In the circumstances, we find merit in the contentions urged on behalf of the appellant-assessee. We are also of the view that the Tribunal has erred in interfering with the Order-in-Appeal No. 2/94(H)(D)CE of the Collector (Appeals) dated 28-2-1994 and Order-in-Original No. 191/91 of the Assistant Collector dated 26-12-1991. In favour of assessee.

Summary

Issues:
Classification of excisable goods under different excise items; Burden of proof on Revenue to prove classification.

Analysis:
1. The appellant-assessee filed a statutory appeal under Section 35L of the Central Excise Act against the Tribunal's order allowing the appeal by the Revenue and setting aside the order of the Collector of Central Excise (Appeals).

2. The assessee manufactured Penetrator-4893 under different tariff items over the years and changed the classification to the appropriate tariff item based on a Chemical Examiner's Report. A Show Cause Notice was issued by the Revenue for non-payment of excise duty, which was contested by the assessee.

3. The Adjudicating Authority discharged the show cause notice based on the Chemical Examiner's Test Report. The Revenue appealed to the Collector (Appeals), who rejected the appeal. The Tribunal, however, allowed the Revenue's appeal, stating that the goods manufactured by the assessee were not to be considered as surface active agents for excise purposes.

4. The appellant contended that the Tribunal ignored crucial reports and laws in its decision. The Revenue argued that the classification of excisable goods involved technical scrutiny and supported the Tribunal's decision.

5. The Court reviewed past classification lists, reports, and orders to determine the correct classification of the product. It noted that the Chief Chemist's opinion confirmed the product's surface active properties, supporting the classification under a specific tariff item.

6. The Court emphasized that the burden of proof lies with the Revenue to establish the correct classification of the product. It cited relevant case laws to support this principle.

7. Ultimately, the Court found the Tribunal's judgment erroneous and unsustainable. It upheld the contentions of the appellant-assessee and set aside the Tribunal's decision, along with the previous orders by the Collector (Appeals) and Assistant Collector.

Conclusion:
The Supreme Court allowed the appeal filed by the appellant-assessee, overturning the Tribunal's judgment. The Court emphasized the importance of the Revenue proving the correct classification of excisable goods and found in favor of the appellant based on the evidence presented.