1998 (3) TMI 328 - AT - Central Excise

Summary

Issues: Classification of goods under Heading 28.15 or 3402.90, imposition of differential duty, invocation of the extended period for recovery of duty, applicability of the proviso to Section 11A.

In this judgment by the Appellate Tribunal CEGAT, New Delhi, the appeals revolve around the classification of goods manufactured by the appellants under the headings 28.15 and 3402.90. The appellants produced "Cleaner E-12 and Cleaner E-12 (Special)" through blending inorganic chemicals. Initially classified under Heading 28.15, a show cause notice challenged this classification, proposing reclassification under sub-heading 3402.90. The Assistant Collector rejected the initial classification and confirmed the reclassification under 3402.90, demanding differential duty. The Collector (Appeals) upheld this decision, leading to Appeal No. E/865/92-C. Another notice sought duty recovery for goods cleared under accepted classification lists, invoking the extended period. The Additional Collector confirmed the demand without imposing a penalty, resulting in Appeal No. E/812/92-C.

The Tribunal analyzed the classification dispute, noting that Heading 28.15 applies to separate chemical elements and compounds, excluding mixtures. The contested goods being a blend of inorganic compounds, Chapter 28 did not cover them. The department proposed classification under 3402.90 for "cleaning preparations," a category not limited to domestic use according to the Tribunal's examination of relevant provisions and notes. The Tribunal rejected the argument that industrial cleaning preparations were excluded. It also dismissed the claim that Heading 38.23, a residual entry, applied, citing the Supreme Court's precedent emphasizing specific classification over residual headings. Consequently, Appeal No. E/865/92-C was dismissed.

Regarding Appeal No. E/812/92-C, the Tribunal assessed the invocation of the extended period for duty recovery. The appellants argued that the department was aware of the goods' composition through multiple samples and tests conducted over the years. Referring to precedents, the Tribunal agreed that despite the misdeclaration of the tariff heading, the charge of misdeclaration was not sustained due to the department possessing all relevant details. Consequently, the proviso to Section 11A was deemed inappropriately invoked, and the demand for duty recovery from July 1986 to August 1989 was considered time-barred. Appeal No. E/812/92-C was allowed, setting aside the order and directing appropriate relief.