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TMI Blog2015 (9) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... is mentioned and the classification of the goods mentioned is 38. It is not possible from the above description for any human being that the inputs have been cleared as such and the classification of the input have been changed. We do not see any reason for the appellant to change the classification. To our mind, the classification has been changed only to ensure that they are in a position to take higher credit and pay lower duty. In our view, there is clear cut suppression of fact and wilful misstatement and in view of the fact and circumstances, extended period of limitation is correctly invoked. Classification of the product has been changed without any manufacturing process. This fact was in their knowledge and therefore they were aware that the goods are liable to confiscation and they were also concerned with the said goods and in view of the said position, the penalty is imposable on them - However, penalty is reduced - Decided partly in favour of assessee. - Appeal No. E/86273 to 86275/13 - Mum - Final Order No. A/2822-2824/2015-WZB/EB - Dated:- 19-8-2015 - P K Jain, Member (T) And S. S. Garg, Member (J), JJ. For the Appellant : Shri R.C. Sekhar, Adv Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at the time of importation is more than the amount of duty paid at the time of clearance. Further the appellant has wrongly classified the product as chemical additives under Chapter 38 under 3811 1900 or 3811 2900. The dispute in the case is relating to the goods so cleared. The appellant is clearing the goods as a manufactured product and paying duty under Chapter 38. Revenue's contention is that the imported goods are classifiable under Chapter 39 and the process of cleaning, repacking and relabeling does not amount to manufacture and thus there is no manufacture of chemical additives for lubricating oil and the goods are being cleared as such and is to be considered as the input cleared as such and the appellant was required to reverse the Cenvat Credit availed at the time of clearance as chemical additives for lubricating oil. 2. Revenue issued demand notice for the period February 2007 to October 2011 to reverse the credit as per Rule 3(5) of CENVAT Credit Rules, 2004, as the process undertaken by them does not amount to manufacture, hence the inputs have been cleared as such. The other ground was that the credit availed at the time of importation is more than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Kashmir Cements Ltd. 2014 (314) ELT 334 l) Jindal Stainless Steelway Ltd. 2014 (310) ELT 194 m) Essar Steel India Ltd. 2015 (317) ELT 713 It was also submitted that the return filed by the assessee is required to be scrutinised by the officer as per the requirement of CBEC Manual therefore at this stage it cannot be said that the extended period of limitation would be applicable. 3.4 It was also submitted that the personal penalty was imposed on Ramesh Babu and Arokia Samy, Sr. excise officer. It was also submitted that they are only employees and acted in bonafide belief that the process amount to manufacture and hence no penalty need be imposed on them. 4. Ld. AR, on the other hand, submitted that it is not disputed by the appellant that they are only cleaning and relabeling the goods. The goods imported falls under Chapter 39 and the activities of repacking and relabeling will not amount to manufacture. It was also submitted that there was no question of changing the classification of the goods by them. Ld. AR further submitted that it was only during audit in the factory that it was realised that the appellant did only repacking and relabeling which does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand on merits. The appellant has submitted a catena of case laws to support that having collected excise duty, Cenvat Credit cannot be denied. We observe that Revenue is not denying the Cenvat credit taken. We observe that appellant is working under the self assessment procedure. In the monthly return they have described goods under Chapter 38 and paid duty. It is only during physical verification and audit of the factory that the correct facts has come out. The catena of the case laws submitted by the appellant are not relevant in the present facts of the case as revenue has not proposed to deny the Cenvat Credit but what revenue is demanding is the differential amount. Hence the case law quoted are not relevant to the facts of present case. 7. The next contention was the quantification of the duty was not correct. During the argument the bench had queried from the counsel whether there is any other method to compute the duty. To this the reply of the counsel was that there is no such method but, rules did not specify the method adopted by Revenue. We have seen the show-cause notice and the method of quantification. Since the appellant is not able to make one to one correlatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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