9911796707
TMI Blog1999 (10) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... 132/- is confirmed under Section 11A(2) of the Central Excise Act and equal amount of penalty imposed under Rule 173Q read with Section 11AC of the Central Excise Act on the applicant and to dispense with the pre-deposit of the duty and penalty as above. 2. The case of the applicant is that a differential duty in respect of clearances for the period 1-7-1992 to 30-6-1997 is demanded alleging suppression of facts on the ground that they had declared the products falling under Heading 34.03, but not declared anti rust chemicals in their rusguard series, contained more than 70% of the mineral oil. The finding of suppression of facts and malafides in the impugned order is patently wrong. The very fact that the product containing more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re drawn on 27-3-1992, 22-5-1992, and 29-5-1992 for sending to the department's Chemical Examiner. The gist of the report of the Chemical Examiner on the products was given to the applicant by the Range Superintendent under the letters dated 8-7-1992 and 23-12-1992. The classification lists dated 4-3-1993, 1-4-1993 and 7-3-1994 have been finally approved classifying the products under sub-heading 3403.00. The notification 287/86-C.E., dated 5-5-1986 issued under Rule 8(1) of the Central Excise Rules "speciality oils" falling under sub-heading 2710.99 or 3403.00 were exempted from the duty leviable in excess of 12% ad valorem which is amended by the Notification No. 127/88-C.E., dated 1-3-1988 increasing the duty to 15%. The duty was fully e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant filed replies to above notices on 20-10-1995, 29-1-1996, and 25-2-1996, to the Assistant Collector of Central Excise. After the filing of reply on 15-9-1997 to the show cause notice dated 4-8-1997, the Assistant Collector of Central Excise, Thane enclosed 13 test reports to the letter dated 13-11-1997 received by the applicant. The said reports pertaining to the product Rusguard P-203 showed no additives, but it was only mineral oil, contrary to the earlier test reports, for which the applicant sought for the re-test vide letter dated 15-11-1997. After hearing the parties, the impugned order is passed by the Commissioner of Central Excise. 5. The learned Counsel for the applicant Shri R.J. Parakh has contended that when the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the department wishes to change the classification, such a change could have only perspective effect. It is further contended by him that there could be no suppression, because the ingredients and nature of the products are all supplied and samples were drawn, and were tested by the department through Dy. Chief Chemist, and on the basis of the reports, the Superintendent has approved the classification list. 6. Shri A. Ashokan the learned Departmental Representative urged that in the previous test reports the Dy. Chief Chemist did not indicate clearly whether the speciality oils were or not. The earlier report was inconclusive. As per the test report and opinion of the Dy. Chief Chemist dated 7-3-1997 and 17-3-1997 it was found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat these were not speciality oils, which came to be known from the report of the Dy. Chief Chemist. It shows willful suppression of crucial material facts by the applicant about the product rusguard which is misdeclared in their classification list of the product "Rusguard" about the contents of mineral oil by weight was more than 70%. It resulted in wrong approving of the classification list due to the suppression of correct material. 7. The applicant should have fully mentioned the description of the goods along with the constituents in the classification list, which would have helped the department in arriving at the right classification. The applicant was aware that the product was not speciality oil as these are not based on lub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting of Rusguard P-203 samples despite the request by the applicant, supports the case of the applicant. The question whether there is a suppression of the fact and mis-declaration by the applicant regarding the product in the earlier classification list and description of the same with the constituents, hinges on the decision of the appeal; it is required to be considered, only while dealing with the appeal on the merits of the case. As pointed out by the applicant, the test reports of 1992 and 1997 are contradictory versions regarding the contents of the additives in the previous report as per Annexure-III. The challenge by the applicant is that the demand of duty on the change of classification of the product, after it is finalised, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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