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TMI Blog2006 (3) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... sification list for approval on 6-11-1989, 2-11-1990, 26-2-1990 and 26-7-1990 claiming the classification of plastic sheeting under chapter heading 3926.90 as Articles of Plastics . They were, however, issued a demand notice on 29-2-1995 demanding duty of ₹ 16,64,377.26 for the period February 1990 to February 1991 on the ground that the- product was classifiable under chapter Heading 3920.12 and not under 3926.90 as claimed by the them. The department alleged suppression of fact and invoked extended period of limitation to substantiate the charge of misdeclaration. The show cause notice stated that the appellants had in their letter dated 26-11-1989 stated that they shall pay the duty @ 35% under protest till their classification li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal s decision in the case of Pratap Rajasthan Copper Foils v. CCE - 1989 (44) E.L.T. 775 (Tri.), wherein it was held that the change in tariff is not to change the nature of the goods and the principle initiated in the old tariff will be applicable to the new tariff also. 3. Reference was also invited to Chapter Note 10 under Chapter 3 which reads as follows: - In Heading Nos. 39.20 and 39.21, the expression plates, sheets, film, foil and strip applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface worked uncut or cut into rectangles including square; but not further worked (even if when so cut, they become articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently allege suppression stating that the correct classification was under chapter Heading 3926.90. It was stated that once this approval was not challenged, the same become final and demands cannot be raised. Reliance was placed on the Supreme Court decision in the case of Northern Plastic Ltd. v. CCE - 1998 (101) E.L.T. 549 (S.C.). Further claim for classification different from one finally accepted or confirmed by the department is not suppression or wilful misstatement with intention to evade duty payment as held by the Tribunal in the case of Wipro Ltd. v. CCE, Aurangabad - 2005 (179) E.L.T. 211 (Tri.-Mum.). 5. The learned SDR Shri Ajay Saxena submitted that the Hon ble Supreme Court s judgment in case of K. Mohan (supra) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 920 it is immaterial whether the subject goods are uncut (a role form or cut into rectangle including square). The goods are, therefore, rightly classifiable under Chapter 3920 and not under 3926. 7. As regards limitation, the learned SDR submitted that the appellants have submitted classification list dated 26-7-1990 effective from 26-7-1990 along with a covering letter 25-7-1990, wherein they undertook to pay higher duty under protest. Similarly while forwarding their classification list effective from 7-8-1990, they have submitted another letter dated 5-8-1990 stating therein that they will continue to pay duty on the product under Heading 39.20 under protest till the approval of the classification list. Further, they had by their let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them differently for different purposes as is evident from their classification list effective from 26-7-1990 wherein under other items manufactured, they have claimed the classification of their product PVC flexible films/sheets under chapter Heading 3920.12 only. 9. We have considered the submissions made by both the parties. On merits, we feel that the assessee product PVC film sheeting is not squarely covered by the Hon ble Supreme Court s judgment in K. Mohan s case as the same related to interpretation of tariff Entry 15A(2) of the old tariff when the entry itself made a distinction between sheets and sheeting. This is not the case with the sub-heading 3920 in the new tariff. If the two tariff entries are differently worded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved. Since the classification list was not approved they have paid duty at a lower rate by misdeclaration in the classification list. Further the classification list approved on 30-5-1991 effective from 2-7-1990 itself classifies PVC flexible films/sheets under Heading 3920 under heading other items manufactured. The period under dispute in the impugned SCN is Feb 1990 to Feb 1991 which is also prior to approval of this classification list. Further, they have been issued a SCN on 31-7-1992 in respect of their classification lists effective from 23-7-1991 and 25-7-1991 and the same have been adjudicated by the assistant Commissioner vide his order in original dated 13-3-1993 rejecting the classification claimed by them under sub-heading 39 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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