9911796707
TMI Blog2004 (6) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11A(1) of the Central Excise Act. 2. Shri M. Chandrashekharan, learned Sr. Advocate, submitted that a show cause notice dated 20-3-91 was issued to them for demanding Central Excise duty for the period from 19-1-1986 to 19-3-1990 on the ground that they were clearing Speciality oil as lubricating oil claiming exemption under Notification No. 120/84-C.E., dated 11-5-84; that the Commissioner under the impugned Order has confirmed the demand of duty and imposed penalty besides confiscating Land, Building, Plant, and Machinery, etc. with an option to redeem the same on payment of fine on the ground that classification and the rate of duty applicable to the impugned product had already been decided by the jurisdictional Asst. Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manufactured and cleared by them. In respect of 59 items the benefit of the Notification was denied to them and in respect of remaining items covered by the show cause notice dated 26-2-91 (i.e. 35 items) the benefit of the Notification No. 120/84 was allowed; that no appeal had been filed by the Revenue against the said Order-in-Original dated 21-3-91; that however, on appeal filed by the Assessee the Collector (Appeals) vide Order-in-Appeal No. SDK/487/B-II/91, dated 25-11-91 again remanded the matter to the Asst. Collector to decide the classification of 59 items after obtaining a test report from the Dy. Chemist, Central Control Laboratories, or any other competent test house. 2.1 Learned Sr. Counsel contended that the duty has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been paid, short levied or short paid by suppression of fact or any contravention of any provision or Rules but there should be wilful suppression........by merely claiming it under Heading 3926.90 it cannot be said that there was any wilful misstatement or suppression of facts. Hence, there was no justifiable ground for the Tribunal for invoking the First Proviso to sub-section (1) of Section 11A of the Act. Reliance has also been placed on the decision in the case of Television Components v. C.C.E., Ahmedabad - 2003 (157) E.L.T. 529 (T). 3. Countering the arguments Shri Vikas Kumar, learned SDR, submitted that the Appellants themselves have published a reference booklet namely Product Line on the wide range of lubricants, fue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s approved by the Asst. Collector of Central Excise on 19-7-86. In view of this fact which has not been rebutted by the Revenue it cannot be claimed that there has been misdeclaration by the Appellants with an intent to evade payment of duty or there was wilful suppression by them. The Supreme Court in the case of Denson Pultretaknik (supra) has held that extended time limit for demand of duty is not invocable for merely claiming classification under different Tariff Heading as it does not amount to wilful misstatement or suppression of fact. The Tribunal has also held in the case of Television Components that having approved the classification lists it would not be proper for the Department to turn around and put the blame on the Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
