9911796707
TMI Blog2000 (4) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... at this stage itself the appeals could be taken up for disposal. This was done by granting waiver of the pre-deposit of the duties and penalties referred to above. 2. The assessees manufactured molten sulphur among other commodities. The classification claimed by them was under Heading 2505 of the CETA. Show cause notice dated 29-1-1998 was issued alleging that the appropriate classification for this commodity was under sub-heading 2804.90. It was alleged that the assessees classification was deliberate with intent to evade payment of duty. Duty amounting to Rs. 22,76,428/- was demanded for the extended period from September, 1994 to January, 1997. Allegations as to penalty were also made. 3. Prior to this show cause notice other sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading 2502 of the Central Excise Tariff. 5. It was further submitted that since 1994 the various classification lists and declara tions filed indicated that the assessees had consistently claimed classification under Heading 2505 alone. Subsequent to the person al hearing the assessees filed a reply memo randum of submissions orally made in the hearing. The trade notice was highlighted and the arguments were also highlighted that the instructions by the Ministry had binding effect on the jurisdictional officers. Curi ously in the summary made by the learned Commissioner of the oral and written arguments made before him, no mention was made of the Board s circular as reflected in the trade notice. Although the case law as to its having a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 30-1-1997 which relates to the classification of molten sulphur manufactured by Sidheshwari Sulphur. Subsequently when the sample from the asses sees factory was sent the chemical examiner referred to this technical opinion and did not give a separate pronouncement of the classifi cation of sample sent to him. The assessees in their submissions had claimed that the chemical examiner s job was to give opinion as to chemistry of the sample and the classifica tion was to be determined by the assessing officer. Here we find that the show cause notice on classification per se was dated 2-1-1997 which was the earliest in chronology but which was never decided by the Assistant Commissioner who was the proper officer for approval of the clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon in the appropriate manner. We also find that the opinion of the chemical examiners was not taken into account in appro priate manner. These three defects render the verdict arrived at by the learned Commissioner in the impugned orders as unsustainable. On these grounds the appeal is allowed and the proceedings are remitted back to the Commis sioner who shall first cause proper analysis to be made by the chemical experts and give a copy thereof to the assessees. He shall then direct them to appear before him to hear their submissions in respect of all the five show cause notices. He shall also pay attention to the existence of the trade notice and the pronouncements made by the Supreme Court in regard to their binding effect and then p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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