2019 (9) TMI 412 - AT - Central Excise

Issue of fresh show cause notice after the withdrawal of the first SCN - Classification of goods - appellant contended that the SCN once issue shall be adjudicated by determining the demand of duty. Therefore, the withdrawal of the first SCN is illegal, consequently, the present SCN also became illegal - HELD THAT - The adjudicating authority has not considered very vital legal issue that once a chemical test examination was done by the Chemical Examiner-Vadodara, thereafter if re-test has been done, it should be done by the Higher Authority i.e. Chief Chemist-New Delhi - The issue that once an SCN was issued whether the same is permitted to be withdrawn without adjudication was also not considered properly by the adjudicating authority. The matter needs to be remitted back to adjudicating authority - appeal allowed by way of remand.

Summary

Issues involved: Classification of residual Crude Bottom Oil in the process of heating Commingled Crude Oil for manufacturing excisable petroleum oils under chapter heading 27.09 or sub-heading 27101990.

Analysis:

1. The appellant argued that once a Show Cause Notice (SCN) is issued, it cannot be withdrawn as per Section 11A, and the withdrawal of the first SCN renders the subsequent SCN illegal. The appellant relied on various judgments to support this argument. Additionally, the appellant contended that the second test report, which formed the basis of the case, was conducted by an authority not permitted to conduct re-testing under the Revenue laboratories manual. The appellant further argued that the residual portion of crude oil after the heating process should be classified as Crude Oil Bottom and cannot be reclassified. The appellant cited relevant judgments to support these contentions.

2. The appellant emphasized that when multiple test results are available, the report favoring the assessee should be accepted. In this case, the third test report indicated similarities between the disputed product and Commingled Crude Oil, favoring the appellant's classification argument. The appellant cited judgments to support this stance.

3. The appellant also argued that the SCN issued in this case was time-barred as it covered a period subsequent to a previous SCN, and there was no suppression of facts. Since the issue primarily revolved around classification based on test reports, the appellant asserted that no malafide intent could be attributed to them.

4. On the other hand, the Revenue representative reiterated the findings of the impugned order without introducing new arguments.

5. The Tribunal noted that the adjudicating authority failed to address crucial legal issues, such as the validity of withdrawing an issued SCN and the requirement for re-testing by a higher authority. Due to these unresolved questions, the Tribunal decided to remand the matter back to the adjudicating authority for a detailed consideration of these aspects. The Tribunal emphasized the necessity of addressing these legal issues thoroughly in the adjudication process.

6. Consequently, the Tribunal set aside the impugned order and remanded the case to the adjudicating authority, keeping all issues open for re-examination. The appeals were allowed by way of remand for the adjudicating authority to reconsider the matter in light of the legal issues highlighted during the proceedings.