2003 (10) TMI 123 - AT - Central Excise

Classification of goods - manufacture of special solvent and other residue using naphtha as raw material - Duty demand of SED - Violation of natural justice - penalty - suppression of facts - HELD THAT - No evidence on record to show that the goods under consideration are suitable for use as fuel either by themselves or in admixture with any other substance in spark ignition engine. The Chemical Examiner s report is of no use insofar as this suitability condition is concerned. Hence the decision of the adjudicating authority classifying the goods under sub-heading 2710.13 is not sustainable. The impugned order does not contain anything in rebuttal of the classification claimed by the assessee either. We therefore approve the classification claimed by the assessee. As we have held the substantial issue in favour of the appellants it goes without saying that the penalty imposed on them cannot be sustained. In the result the impugned order is set aside and the appeal is allowed.

Summary

Issues involved: Classification of goods under Central Excise Tariff Act, 1985; imposition of Special Excise Duty (SED); penalty under Section 11AC of the Central Excise Act; violation of natural justice.

Classification of Goods: The appeal challenged the order confirming demands of SED and penalty imposed by the Commissioner, based on the classification of 'special solvent' and 'other residue' under sub-heading 2710.13. The appellants had classified the products differently under Rule 173B, clearing them at a different duty rate. The Department disagreed with this classification, demanding SED at a higher rate and alleging suppression of facts. The impugned order was passed ex parte as the assessee did not respond to show cause notices.

Violation of Natural Justice: The assessee raised a plea of violation of natural justice, claiming the order was based on personal knowledge rather than evidence. The Counsel argued that the adjudicating authority did not provide clear findings on the suitability of the products for use as fuel in spark ignition engines, as required by the relevant Tariff Heading. The penalty imposed under Section 11AC was also challenged for lack of a disclosed basis.

Decision: After examining the records and submissions, it was found that the goods were incorrectly classified under sub-heading 2710.13 by the Commissioner. The Chemical Examiner's report did not conclusively support the classification, lacking evidence of the products' suitability for use as fuel in spark ignition engines. Citing a relevant Tribunal decision, it was established that the goods did not meet the necessary criteria for classification under sub-heading 2710.13. Consequently, the classification claimed by the assessee was approved, leading to the setting aside of the impugned order and allowing the appeal. The penalty imposed was deemed unsustainable in light of the favorable classification decision.