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TMI Blog2014 (12) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... to what they suppressed which was required to be disclosed as per law. Not taking suo moto initiative has never been a valid ground for sustaining charge of suppression. Thus, prima-facie, the appellants have made out a good case regarding non invokability of the extended period. It is seen that out of the impugned demand, an amount of about 8.68 lakhs pertains to the normal time limit. Therefore, we are of the view that pre-deposit of 8.70 lakhs with proportionate interest would meet the requirement of Section 35F of the Central Excise Act, 1944 - Partial stay granted. X X X X Extracts X X X X X X X X Extracts X X X X ..... penalties. 3. The appellants have contended that: (i) After the introduction of eight-digit-based tariff, their product was more specifically classifiable under heading 24039960 as it was essentially a tobacco extract. (ii) It was classified as preparation containing chewing tobacco under heading 2404.41 during the six digit-based tariff regime as a more specific entry was not available at that point of time. The appellants described in detail as to how the product is manufactured and how it is not a preparation containing chewing tobacco as it cannot even be consumed, as observed even by the Supreme Court in para 19 of the judgment in the case of Dharampal Satyapal vs. CCE, New Delhi - 2005 (183) ELT 241 (SC). 4. As is evident from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bid and therefore, prima-facie, the impugned demand is sustainable on merit. 5. The appellant have also argued that: (i) There is no suppression and they have been filing all their returns showing the classification of the impugned goods. (ii) It is not the case that they have done any clandestine removals. (iii) They have been clearing goods paying duty thereon as per Section 4 ibid. 6. We find that in the impugned order, the Commissioner (Appeals) has held them guilty of suppression on the basis of para 17.1 (of the impugned order) which is reproduced below for ease: 17.1 I have considered carefully the appellants arguments. However, I am not inclined to agree with their submissions that this is merely a bonafide classification di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to warrant judicial citations like Cadilo Laboratires vs. CCE Vadodara - 2003 (152) ELT 262 (SC), Padmini Products vs. CCE, Bangalore - 1989 (4) SCC 275, CCE, Hyderabad vs. Chemphor Drugs & Linimeats - 1989 (2) SCC 127. The very fact that they have been paying duty as per Section 4 also goes to show that prima facie they had no intention of hoodwinking the department. 8. Thus, prima-facie, the appellants have made out a good case regarding non invokability of the extended period. It is seen that out of the impugned demand, an amount of about ₹ 8.68 lakhs pertains to the normal time limit. Therefore, we are of the view that pre-deposit of ₹ 8.70 lakhs with proportionate interest would meet the requirement of Section 35F of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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