9911796707
TMI Blog1999 (1) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 11A of the Central Excise Act, 1944. A penalty of Rs. 75,000/- has also been imposed on the appellants. Show cause notice issued on 29-9-1990 alleging that the appellants had contravened various Central Excise Rules inasmuch as they had misdeclared the classification of the valve actuators and parts thereof falling under Chapter sub-headings 8481.80 and 8481.99 attracting duty of 15% ad valorem instead of correctly classifying under Chapter Headings 85.01 and 85.03 respectively attracting duty of Rs. 25% ad valorem and 20% ad valorem respectively. It was alleged that the appellants had removed the goods with intent to evade payment of duty by suppressing actual construction of the equipment i.e. valve actuators in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visional Office. It was also stated that all the particulars had been furnished including technical literature and write up and therefore it was contended that there was no suppression or misdeclaration in the classification lists. It was contended that the AC passed a detailed order approving the classification lists. The AC had also issued show cause notice on 6-9-1989 asking the appellants to show cause as to why the actuators should not be classified under Heading 85.01 and parts thereof under Heading 85.03 instead of 8481.80 and 8481.99 respectively. It is stated that the AC after detailed hearing passed the order dated 30-10-1989 holding actuators to be classified under Heading 85.01 and parts under Heading 85.03 basing his decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r held that the items are classifiable under Headings 8481.80 and 8481.99 respectively without consideration of any technical literature or judgment cited by the appellants including the relevance of Note (2) of Section 16 of the Tariff. He has also not considered the judgment of the Tribunal in the case of National Newsprint and Paper Mills (supra). He has proceeded to hold that there was intention to suppress true and full facts and there was misdeclaration of the classification of the goods. But there are not sufficient reasons as to how there could be suppression when the appellants had filed declaration and submitted all the technical write-up and literature and the same was scrutinised and approved and after detailed proceedings by is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prima facie view arrived at by the Tribunal is required to be confirmed. 7. The learned DR reiterated the department s view. 8. On consideration of the submissions made, we are of the considered opinion that the Commissioner had no ground to invoke the longer period of limitation in terms of Section 11A in the present case by issue of show cause notice again on 29-9-1990 when the AC had commenced the earlier proceedings on the same issue and for the same period and had dropped the proceedings by accepting and confirming the earlier classification lists. Further ground taken by the Commissioner was that the appellants had misdeclared and intentionally not furnished information as to the use of electric motor in the construction of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classification lists and again at the time of re-opening the issue by issue of show cause notice. Therefore, the approach of the Commissioner in the matter is not fair and cannot be appreciated and no ground has been put forth for re-classifying the same under different headings. Also there is no ground or reasoning as to how the items can be re-classified under different headings. There is no consideration of the judgment of the Tribunal on the issue holding that actuator is not motor as held in the case of National Newsprint and Paper Mills (supra). 9. In the case of Cosmic Dye Chemical v. C.C.E. reported in 1995 (75) E.L.T. 721 (S.C.), the Hon ble Supreme Court has set aside the demand invoking the provisions of Section 11A of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with classification lists. It also observed that it was not understandable as to what other details were required to be furnished by the appellants and in any case, the appellants could have been asked to furnish any more information needed by the Department in case the authorities entertained any doubt. The Tribunal observed that not having done so, prima facie, the Tribunal found that the authorities did not entertain any doubt in their mind in regard to the description of the product furnished by the party and in the facts and circumstances the Tribunal held that there was no suppression of information on the part of the appellants and it is only because of the authority s own ignorance that suppression of facts had been attributed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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