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2013 (8) TMI 773

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..... n the system of filing classification list and getting it approved was in vogue. Revenue has not brought out any change in manufacturing process or the contents used after self-assessment is introduced. No suppression of information during the earlier period is brought out much less any mis-declaration - No justification to invoke extended period of five years provided in Section 11A for issuing demand notice - Demand is tie-barred – Decided in favor of Assessee. - E/322/2009 - - - Dated:- 3-5-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant: Shri K.S. Venkatagiri, Advocate For the Respondent: Shri K.S.V.V. Prasad, Jt. Commr. (AR) JUDGEMENT Per Mathew John The appellant are manufacturers of sugar co .....

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..... y (including white chocolate) not containing coca 1704.10 Gums, whether or not sugar coated (including chewing gum, bubble gum and the like) 16% 1704.90 Other 16% 2. The appellants contest that they used gaur gum only in very small quantities as a stabilizer and the products so manufactured cannot be considered as chewing gum and bubble gum and the like. They plead that only sugar confectionary similar to chewing gum and bubble gum will be classifiable under sub-heading 1704.10. They argue that the product is not known in the market as gums nor are they similar to chewing gum or bubble gum. They pointed out that gaur gum is used in the fo .....

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..... s published by CBEC during the time when old Tariff was in force treated only chewing gums and bubble gums in the category of gums. Therefore, they were classifying the products based on established products and mentioning declaration based on bonafide belief before the Central Excise authorities. 3. They point out that as early as 1.9.2000, the appellant had filed declaration duly received by the Superintendent wherein the impugned product had been classified under sub-heading 1704.90 and the declaration also contained manufacturing process and list of materials used including gum Arabic. The same has been submitted as Annexure 16 to the appeal papers. Therefore, it is their contention that the Department was all along aware of use of ab .....

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..... scheme of self-assessment was in force during the period for which demand is raised. So it was the responsibility of the appellant to disclose the presence of gum and the percentage of the gum present to the department and also to classify the product under the correct sub-heading and pay duty. Since the appellant had not discharged this responsibility duly, there was suppression on the part of the appellant and hence the extended period of time is correctly invoked for raising the demand. 8. We have considered arguments on both sides. While we see strong merit in the contention of the appellant that a small percentage of gum in sugar confectionary may not be sufficient to consider the product as gum, we find that the argument of the app .....

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