9911796707
TMI Blog2006 (1) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... when such mixture had never been bought and sold, nor could it be bought and sold being unstable and having a small shelf life as claimed by the appellant. 1.2 The appeal also involves determination of the question whether the extended period of limitation could be invoked when the department was in full knowledge of the factum of appellants' activity for manufacturing of the toys and also the activity of obtaining the said mixture termed as 'plastisol'. 1.3 Then also involves determination of a question whether the reports of Deputy Chief Chemist and Chief Chemist could be relied upon by the Commissioner, in light of the cross examination results before him that the said reports of the two officers were contradictory and they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 to 30-11-1996. 2.3 A sample of plastisol was drawn by the department and sent to the Chemical Examination, whose report was supplied to the appellant on 11-9-1998. 2.4 Another Notice dated 4-7-1997 was issued demanding duty for the period December, 1996 to March 1997 and a Corrigendum was issued on 16-6-1998 which altered the basis of the demands. 2.5 Reply was sent to Notice dated 5-6-1997 and 4-7-1997 by a joint reply dated 20-11-1998 and bar of limitation was claimed. On merits, the plea was made that mere mixture of few duty paid raw materials result in a liquid paste and such a liquid paste cannot be called plastisol, as such liquid paste has extremely short shelf life and was not ordinarily marketable. The product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were cross examined and thereafter all the eight Show Cause Notices and demands therein were determined vide Order-in-Original dated 3-11-2004 issued on 6-12-2004 by holding the product plastisol as excisable having essential characteristics of a stable product plastisol and duty demands were confirmed for the period April 1992 to October 1999 along with penalties and interest. Hence the present appeal. 3.1 After hearing both sides and considering the materials on record, it is found and held : (a) The Show Cause Notices relied upon the report of Laxmi Narayan Institute of Technology. Nagpur and the correctness of the same was challenged and cross examination demanded of the author of the said report. The said request has not been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity? The orders failure to do so calls for not upholding the same. (c) There is force in die submission made before us that the Commissioner has arrived at the classification of the Plastisol under Heading 3904.22 when the Show Cause Notice had proposed it Under 3911.10. In doing so the Commissioner has traversed beyond the proposal in the Notice and such an order requires to be set aside on that ground itself. (d) The proposal in the Show Cause Notice was based on the report of Laxminarayan Institute of Technology and even that report as relied upon, is not fully followed and onus discharged as regards the contents to establish marketability and stability of the product. The subsequent test report results received on 11-9-1998 and 9-9-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o test having been carried out also the evidence produced by the appellant as regards the essential presence of viscosity depressant & that to be the main factor to be rendering the goods a shelf life and consequent marketability, as rendered in the affidavit relied upon by the appellants as per the Reader of Polymer Technology of Mumbai University by these test reports of the Deputy Chief Chemist and the Chief Chemist. (f) There is force found in the plea of the appellant that the entire stand as made out in the notice was shifted and the appellant were not having adequate notice of such shifts, which has rendered denying the opportunity to make submissions in respect of such amendments, by not getting such an opportunity violates the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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