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TMI Blog2019 (1) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating on 4.3.2015, which has been accepted by the appellant and started paying duty on BCT of their product from 1.3.2015. In that circumstance, the benefit of doubt goes in favor of the appellant. The order of the adjudicating authority was reviewed only after introduction of Notification No. 25/15-CE dt.30.4.2015 wherein the duty on JST was enhanced and prior to that period, the duty paid by the appellant on BCT was accepted by the Revenue has not objected the classification during the period 1.3.2015 to 30.4.2015 as BCT. Further, no declaration was filed by the appellant, therefore, the change of classification from 30.4.2015 is not acceptable, if the said notification would not have come into force, in that circumstance, the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onth. Due to change of duty structure, the appellant filed declaration under Rule 6 of Chewing Tobacco Rules in Form-I on 2.3.2015 with effect from 1.3.2015, declaring their product as JST. The Assistant Commissioner vide order ddt.4.3.2015 after taking the facts into account re-determined annual capacity of the appellant holding that the appellant is not manufacturing JST and their product is only BCT. The said order was accepted by the appellant and started paying duty in terms of order of the Assistant Commissioner dt.4.3.2015. 4. Further, vide Notification No.25/15-CE dt.30.4.2015, Notification No.16/10-CE was amended wherein the rate of duty on JST was enhanced from ₹ 27.05 lakh to ₹ 82.11 per machine per month. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order dt.4.3.2015 was reviewed on 27.5.2015, thereafter the appeal was filed before the Commissioner (Appeals) without examining the samples that whether the product is JST or BCT. In fact, at the time of filing the declaration, no sample was drawn by the department and there is no test report is available on record. Therefore, in that circumstance, the product of the appellant cannot be known and when the appellant themselves has admitted that they are manufacturing BCT and started paying duty as per order dt.4.3.2015, in that circumstance, the Commissioner (Appeals) cannot change classification without examining the samples and test report available on record. The impugned order has been passed on assumption and presumption holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. 9. On careful consideration of the submissions made by both sides, we find that the following facts are in dispute:- The appellant was manufacturing BCT and was paying duty thereon and filing their ER-1 returns declaring their product under heading 24039910 of Central Excise Tariff Act. The dispute arose in terms of Notification No.5/15-CE dt.1.3.2015. In terms of the said notification, the rate of duty of JST was reduced and to take the benefit of reduced duty, the appellant filed declaration under Rule 6 of the Rules declaring their product as JST dt.2.3.2015 without evidence. The said declaration was examined by the adjudicating authority, who held vide order dt.4.3.2015 that the product is BCT and not JST and the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of the appellant. The order of the adjudicating authority was reviewed only after introduction of Notification No.25/15-CE dt.30.4.2015 wherein the duty on JST was enhanced and prior to that period, the duty paid by the appellant on BCT was accepted by the Revenue has not objected the classification during the period 1.3.2015 to 30.4.2015 as BCT. Further, no declaration was filed by the appellant, therefore, the change of classification from 30.4.2015 is not acceptable, if the said notification would not have come into force, in that circumstance, the order of the adjudicating authority would not have reviewed. The classification of the product cannot be done on the basis of assumptions and presumptions. In the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X
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