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TMI Blog2001 (10) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... h was adopted under protest. In April, 1976 the sample of the product was drawn. In December, 1976 the Superintendent conveyed the opinion of the Dy. Chief Chemist that the product consisted of reducing sugars. It would appear that the goods in terms of this advice were classifiable under tariff item 1 of the then tariff. However, the Assistant Collector classified the product under Tariff Item No. 68 and even refunded duty earlier paid under Tariff Item 15C. This was because under Tariff Item 68 the benefit of Notification No. 118/75 was available on account of captive consumption of the goods. Up to the time of introduction of the new tariff this classification continued to prevail. After the introduction of the new tariff the assessee adopted classification under Chapter 19 but soon changed it to Chapter 29 (March, 1976). In August, 1986 the assessee claimed classification under Chapter 19 referring to a certificate given by the Drug Controller to the effect that maltodextrin was a bulk drug. Benefit of Notification 234/82 was claimed. Classification list was filed afresh. The sub-heading was changed from 29.42 to heading 29.13 in terms of budgetary changes in 1987. This was app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tariff item No. 1E of the old tariff. He classified it under tariff item No. 68 for the period September, 1983 to February, 1986 and dropped demand of Rs. 39,74,583/-. He then discussed the question of maltodextrin under the new tariff. He referred to the sub-notes given in the HSN which classified substances containing less then 10% of reducing sugar content under heading 35.05 and products containing more than 10% but less than 20% of such sugar under heading 17.02. He finalised classification under sub-heading 1702.29. He rejected the claim under Chapter 29 saying that maltodextrin was not a separate chemically defined organic compound. As regards maltodex he accepted the contention that maltodex and maltodextrin were different products. He referred to the test report of maltodex communicated to the assessee in January, 1993 and relying thereupon classified maltodex also under sub-heading 1702.29. 5. The Commissioner dealt with the aspects of limitation advanced by the assessee. He observed that although the Food and Drug Administrator had accepted "maltodextrin" as bulk drug it was described in the classification list as "Maltodextrin-BPC". The Commissioner held that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were different products. We have perused the judgment of the Tribunal in the case of Vijaya Packing v. CCE - 1994 (71) E.L.T. 254 and find that it has little relevance to the proceedings before us. 9. Under the new tariff Maltodextrin was sought to be classified by the assessee under tariff sub-heading 2913.00 in terms of the certificate dated 27-9-1986 of the Dy. Drugs Controller by filing classification list No. 6/86. This list is not on record but the next classification list namely 9/86 is on record, indicating its description, its classification and claiming benefit of Notification No. 234/86. The description was the same as in the certificate of the Drug Controller. The same occurs in the subsequent classification list such as 3/87. The list show that the term Maltodex was not qualified by addition of any suffixes. 10. The Commissioner in his order in paragraph 63 has mentioned that although the assessee had applied for classification as bulk drug of "Maltodextrin-BPC", the authorities had issued the certificate for the bulk drug "Maltodextrin" and not "Maltodextrin BPC". He has referred to the same letter dated 29-10-1986. The show cause notice did not show th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91-91 (sic) they could not form part of the charges levelled against the assessee. Shri Hidayatullah also claims that the copy of the test report was received in June, 1999 nearly five months after the personal hearing was concluded. The assessee protested against the method and the conclusion and requested for fresh samples to be drawn but by that time the Commissioner had concluded the adjudication proceedings. 13. As we have observed above the classification of Maltodex under Chapter 17 is solely on the basis of the report of the Dy. Chief Chemist. There is a contest on the date on which the test report was supplied to the assessee. If it is the assessee's claim that they did not receive the letter in 1992 then the point that they did not ask for re-test cannot be alleged against them. Either way what emerges is that the material which is not included in the show cause notice was relied upon at a stage when effective counter could not be made by the assessee. Therefore, the orders of classification on this evidence become unsustainable. 14. There were two other issues before the Commissioner. The first was that similar products were available and therefore the valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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