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TMI Blog2012 (5) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... case are that the Respondents are engaged in the manufacture of excisable goods viz.Tea Sorting Machine, Tea Extractor Machine and parts thereof. They had classified the same under Heading No.84.33 of the Central Excise Tariff Act, 1985 attracting nil rate of duty. They also claimed the benefit under different SSI exemption notifications. The Officers of DGCEI working on intelligence made a case against the Respondents on the ground that the goods in question were classified as excisable goods. However, they wrongly availed the benefit of SSI exemption notifications. Accordingly, show cause notices were issued for recovery of duty by classifying the products under Heading 84.38 not under 84.33. There was also a proposal for imposition of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department did not raise any objection, so far as the approved Classification List effective from 01.04.95 was concerned. The contention of the learned Consultant is that their produce is an agricultural produce. The contention is that the agricultural produce is not defined under the Central Excise provisions. However, vide the Notification No.08/2004-ST dated 09.07.04, agricultural produce had been defined which included tea. Therefore, tea is an agricultural produce and the goods manufactured by them had rightly been classified under 84.33. 6. We have considered the submissions and perused the records. Learned Commissioner (Appeals) found in his Order as under:- 7. On merits also I find that the Assistant Commissiner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the machineries were cleared for some purposes other than tea industry. I am inclined to accept this finding of the adjudicating authority. The case records reflect that the department was made aware of the classification and it was open to the department to change the classification if the product was held to be classifiable under different heading/sub-heading. The adjudicating authority has also rightly recorded that under erstwhile Rule 173B(2) inserted by Notification No.17/95-CE (NT) dated 1.5.95 the proper officer is empowered to call for any document or thing or person before approving/accepting classification declarations filed by the respondent. The Hon ble Tribunal as well as the Apex Court have consistently held the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. has to be established. This amendment gives authority to demand for previous period of one year/five years even if classification list was approved as under Section 11A prior to its amendment demand could be only prospective if classification was approval by the Department in view of law laid down in Cot spun Ltd. case [1999 (113) ELT 353 (SC)]. 7. We find that the learned Commissioner (Appeals) has given cogent findings. The Department could not produce anything contrary. Thus, we do not find any reason to interfere with concurrent findings of both the lower Authorities. Further, on similar facts and circumstances, this Tribunal in the case of M/s Hi Flow Pump Co. and M/s C.M.HO & Co. vide Order No.A/208-210/Kol/2012 dated 3.4.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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