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TMI Blog2011 (2) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... d the duty demand of Rs. 1,28,621/-, imposed equal amount of penalty under Section 11AC of Central Excise Act, 1944, ordered recovery of interest and also imposed penalty of Rs. 5,000/- under Rule 27 of Central Excise Rules, 2002. The appeal filed by the appellant was rejected in the impugned order and hence the appellant is before us. 2. On merit of the classification proposed by the Revenue, it was submitted by the learned Counsel for the appellant that the articles produced by the appellant are not at all classifiable under CETH 48.20. He drew our attention to the relevant chapter heading, chapter note of Chapter 48.20 as well as CETH 49.11 and submitted that the goods are clearly covered by CETH 49.11 only. He submits that all the products are printed articles and it is not correct to call them as manufactured and cleared. He explained each and every document and submitted that in all documents, printing was essential and view taken by the original adjudicating authority that these are in the nature of forms and they are required to be filled in and therefore they come under Chapter 48.20, is not correct. He also submitted that only manifold business forms and interleaved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 820 90 90 Other Kg. 16% 4911 Other Printed matter, including printed pictures and photographs 4911 10 Trade advertising material, commercial catalogues and the like : Kg. Nil 4911 10 10 Posters, printed Kg. Nil 4911 10 20 Commercial catalogues Kg. Nil 4911 10 30 Printed inlay crds Kg. Nil 4911 10 90 Other Kg. Nil Other : Kg. Nil 4911 91 00 Pictures, designs and photographs Kg. Nil 4911 99 Other : Kg. Nil 4911 99 10 Hard copy (printed) of computer software Kg. Nil 4911 99 20 Plan and drawings for architectural engineering, industrial, commercial, topographical or similar purposes reproduced with the aid of computer or any other devices Kg. Nil 5. Chapter notes relating to CH 48.20 reads as under : (1) Registers, account books, note books of all Kinds, order books, receipt books, copy books, diaries, letter pads, memorandum pads, engagement books, address books and books, pads, etc., for entering telephone numbers. (2) Exercise books. (3) Binders (loose-leaf or other), folders, file covers, files other than box files) and portfolios ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns devoted essentially to advertising, trade catalogues of all kinds (including book or music publishers' lists, and catalogues of works of art) and tourist propaganda. Newspapers, periodicals and journals, whether or not containing advertising material, are however excluded (heading 49.01, 49.02 as appropriate). (2) Brochure containing the programme of a circus, sporting event, opera, play or similar presentation. (3) Printed calendar backs with or without illustrations. (4) Schematic maps. (5) A national, botanical, etc., instrumental charts and diagrams. (6) Cinema, theatre, concert, railway and other tickets. (7) Window transparencies, other than those printed merely with decorative designs (see the Explanatory Note to heading 48.14). (8) Microcopies on opaque base of the articles of this Chapter. (9) Screens made by printing a film of plastics with letters or symbols to be cut out for use in design work. Such screens simply printed with dots, lines or squares are excluded (Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction by the several methods of ordinary hand printing (e.g. prints from engravings or woodcuts, other than originals) or mechanical printing (letterpress, offset printing, lithography, photogravure, etc.), but also reproduction by duplicating machines, production under the control of a computer, embossing, photography, photocopying thermo-copying or typewriting (see Note 2 to this Chapter), irrespective of the form of the characters in which the printing is executed (e.g. letters of any alphabet, figures, shorthand signs, Morse or other code symbols. Braille characters, musical notations, pictures, diagrams. The term does not, however, include coloration or decorative or repetitive-design printing. The Chapter also includes similar products executed by hand (including hand-drawn maps and plans), as well as carbon copies of hand-written or type-written texts. In general, the goods of this Chapter are executed on paper but the goods may be on other materials provided they have the characteristics described in the first paragraph of this General Explanatory Note. In addition, to the more common forms of printed products (e.g. books, newspapers, pamphlets, pictures, advertising m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles are essentially for completion in manuscript or type-script, the product would be classifiable in CETH 48.20 only. This is further confirmed by Chapter under Chapter 49. Under Chapter 49, note provides that wherever printing is merely incidental to their primary use, the product falls under Chapter 48. In fact, in the Chapter Note under Chapter 49, it is clearly provided that the printed stationery would fall in Chapter 48. The fact that Chapter 49, according to Chapter notes covers greeting cards, post ; cards, calendars or maps would show that what is required to be seen is the use of product and the purpose of printing on the product. If the nature of the use is as a stationery and the purpose of printing is to facilitate use as stationery, the product would fall under CETH 48.20 only. In fact, it is also provided that certain articles may be intended for completion in manuscript but remain in Heading 49.11 provided they are essentially printed matters. The note also provides that printed forms, circulars, letters, or similar articles, printed with messages, notices, etc. requiring mere insertion of minor details such as date or name, remain in this heading. This is another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s falling under Chapter 48 & 49 of the First Schedule to Central Excise Tariff Act, 1985 valued at Rs. 18,53,303/- during the period from 1-3-06 to 21-9-07 involving Central Excise duty of Rs. 1,28,621/- (BED Rs. 1,25,981/- + EC Rs. 2,520/- + Higher Education Cess Rs. 120/-) as mentioned in Annexure A to the statement of Mudresh Purohit, Proprietor of the said unit without obtaining Central Excise registration, without following proper Central Excise procedures, without issuing Central Excise invoices, without filing ER 1/3 returns with the jurisdictional Range office, without payment of Central Excise duty leviable thereon and thus contravened the provisions of (i) Rules 4, 5 and 6 of Central Excise Rules, 2002 inasmuch as they have failed to determine/discharge/debit the Central Excise duty on the goods i.e. printing articles and materials removed under their gate passes, (ii) Rule 8 of Central Excise Rules, 2002 inasmuch as they have failed to debit the appropriate Central Excise duty in respect of the said goods removed from their factory, (iii) Rule 9 of Central Excise Rules, 2002 for failing to obtain Central Excise registration, (iv) Rule 11 of Central Excise Rules, 2002 ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of facts with intent to evade payment of Central Excise. Therefore, the duty involved in the clearance of above said period is required to be recovered under Section 11A of the Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002, along with interest under Section 11AB at appropriate rate and also penalty under Section 11AC of Central Excise Act, 1944 is imposable on the appellant." 15. It may be seen from the above that the show cause notice presumed that contravention of rules and the provisions of law is sufficient to support invocation of extended period and no other evidence is required. Further, the original adjudicating authority has reproduced the paragraph of show cause notice and for him "it appears to be a case of suppression/misdeclaration." The Commissioner (Appeals) has affirmed the suppression but without any supporting fact/document of evidence. Therefore, we find that no ground has been made out for invoking the suppression and extended period in the show cause notice and neither the adjudicating authority nor the appellate authority has considered the issue at all. All seem to think violation of provision of rules, if cited, is sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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