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TMI Blog2012 (9) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... fall under Tariff Heading 3206.90, the question of shifting the burden to the appellants for the purpose of extending the benefit of exemption does not arise - values of clearances of the impugned products by the appellant are within the exemption limit as provided under Notification No. 1/93 - classification as per the order of the Commissioner - demand of duty, order of confiscation and imposition of penalties set aside X X X X Extracts X X X X X X X X Extracts X X X X ..... ice on the following grounds :- (a) The classification of the product should be under Chapter 28.21 and this claim was made by challenging the test results given by the Chemical Examiner in respect of both the products and also challenging the test result of the Chief Chemist, Delhi in respect of Microfined Red Oxide, on the re-test, which was done at the request of the appellants. (b) They also submitted that the goods, which were repacked by them, were classified under CH 2821 by the original manufacturers. (c) Alternatively, they also claimed benefit of exemption under Notification No. 1/93 dated 28-2-1993 on the ground that values of clearances of the impugned goods were less than Rs. 1 crore during each of the years 1995-96 and 96-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the test result in respect of the product Microfined Red Oxide, as given by the Chemical Examiner, Cochin, is to the effect that the Fe2O3 content was 52.5% and on re-test, at the request of the appellant, by the Chief Chemist, the same was found to be 52.6%. The appellants, undisputedly, have not asked for re-test of samples of Microfined Jet Black Oxide and the test results given by the Chemical Examiner is in favour of the claim by the Department. Further, the testing of samples, at the instance of the assessee-appellant from other institutions in 1999, cannot support the case of the appellant in respect of the classification issue relating to products cleared by them during the years 1995-96 and 1996-97. Therefore, we uphold the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the said branches would fall under Tariff Heading 3206.90 and, therefore, the clearances from the said branches were required to be added to the value of clearances from Calicut branch for the purpose of determining the exemption limit under Notification No. 1/93 dated 28-2-1993. The burden to prove classification of the product is clearly on the department. Inasmuch as the department has not proved that the products cleared from other branches at Ernakulam, Mangalore, Bangalore and Coimbatore fall under Tariff Heading 3206.90, the question of shifting the burden to the appellants for the purpose of extending the benefit of exemption does not arise. 6.4 Undisputedly, the values of clearances in respect of the impugned products a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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