9911796707
TMI Blog2013 (11) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts, PO : Kathwada, Ahmedabad (respondent) in the present proceedings, under Chapter heading 1103.00 of Central Excise Tariff Act, 1985 whereas the show cause notice was issued claiming classification of the product under CETH 3505.90 as Modified Starch. The show cause notice was discharged both on merits as well as applicability of extended period. These appeals are filed by the Revenue on the following grounds:- (i) That the adjudicating authority has erred in observing that merely by using Flash Dryer, there is no transformation in native starch and starch so obtained after flash drying cannot be considered as a modified starch. The notice has not been issued merely due to the use of Flash Dryer, but has been issued on the strength of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f adjudication cannot be relied upon in as much as the samples of the product in dispute were drawn under Panchnama at the spot and the test result of these samples have to be given cognizance and not the test results of the samples drawn at a later date. Reliance placed on such reports and that too at a later stage is not legal and correct. In fact, the test report of the samples drawn under Panchnama clearly stated that the product in question could be considered as processed/ modified starch. (iv) That Shri Kiran R Harshe, Manager (Quality Control) of the said assessee has clearly stated in his statement dated 13.03.2003 that they supplied such grade of starch following the parameter mentioned in the table given at Para 3.3.3 of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Sivakumar, learned A.R. appearing on behalf of the Revenue argued that as per test report dated 03.11.2003 of chemical Examiner of Central Excise and Customs, Laboratory Vadodara, the classification of the MSP manufactured by the respondent was required to be classified under Chapter sub-heading 3505 of the Central Excise Tariff. It was also argued that deciding the case on the basis of test report of samples drawn and tested during adjudication is not legal and test report with reference to the samples drawn during the course of investigation was only required to be relied upon. 3. Shri P.M. Shri P.M. Dave, Advocate, (Advocate) and Shri Kuntal Parikh (Advocate) appeared on behalf of the respondent highlighted the cross-examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case is the classification of Starch (MSP)manufactured by the respondent whether the same should be classified under Chapter sub heading 1103.00 as non-modified Starch or under Chapter heading 3505.90 as modified Starch. The whole case was made on the basis of a chemical test report dated 03.11.2003 sent by Chemical Examiner, Central Excise and Customs, Vadodara. The said report read as follows :- The process of manufacture enclosed with your letter has been studied. The said process is an usual process for the manufacture of starch from 'Maize. In technical literature, the manufacturing process is given in details. After going through the technical literature available in this lab an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been the main argument of the Revenue that test result of the samples drawn at a later stage during adjudication proceedings cannot be relied upon inasmuch as the samples of disputed products were already drawn under Panchnama and the test result of those samples have to be only given cognizance and not to the test result of samples drawn at a later date. 6. In this regard, the respondent has relied upon the judgment of Ridhi Siddhi Gluco Biols Limited vs. CCE, Belgaum (supra) wherein in Para 7.4, following has been held:- 7.4. As per the explanatory notes, modified starches may be distinguished from unmodified starches of Chapter 11 on the basis of changes in their proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belong to category of native starches of CETH 1103.00 and not modified starches of 3505.90. 8. It is observed from Para 14 of the order-in-original dated 28.8.2006 that adjudicating authority has also dropped proceedings on the ground that extended period cannot be invoked in this case. It has, therefore, been rightly argued by the advocate for the respondent that proceedings regarding demand of duty being time-barred, has not be questioned by the Revenue, in the appeal. 9. In view of the above observations, the impugned order dated 28.8.2006 passed by adjudicating authority is legal, correct and justified and does not need any interference. Accordingly, appeal filed by the Revenue is rejected. (Operative part of the order pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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