9911796707
TMI Blog2000 (4) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 show cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Sub-heading 2502 of the Central Excise Tariff." 5. It was further submitted that since 1994 the various classification lists and declarations filed indicated that the assessees had consistently claimed classification under Heading 2505 alone. Subsequent to the personal hearing the assessees filed a reply memorandum 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. Curiously 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first is technical opinion No. 47/96, dated 30-1-1997 which relates to the classification of molten sulphur manufactured by Sidheshwari Sulphur. Subsequently when the sample from the assessees factory was sent the chemical examiner referred to this technical opinion and did not give a separate pronouncement of the classification 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 classification 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice dated 2-1-1997 on classification has not been proceeded upon in the appropriate manner. We also find that the opinion of the chemical examiners was not taken into account in appropriate 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 Commissioner 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 pronounceme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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