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TMI Blog2019 (4) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... 01950 of CETA, 1985. Scope of SCN - Held that:- The learned Commissioner has travelled beyond the scope of SCN and relied upon material which are conflicting in nature and without any further verification or re-test and hence the classification arrived at by the learned Commissioner cannot be sustained. The classification under a different sub-heading to the one proposed in the Show Cause Notice is not permissible. Appeal allowed - decided in favor of appellant. - Appeal No. E/1101/2010 - A/85604/2019 - Dated:- 27-3-2019 - DR. D.M. MISRA, MEMBER (JUDICIAL) And MR. C.J. MATHEW, MEMBER (TECHNICAL) For Assessee: Shri C.S. Biradar, Advocate For Revenue: Shri N.N. Prabhudesai, Supdtt. (A.R.) ORDER Per: Dr. D.M. Misra This is an appeal filed against OIO No.02/CX/2010, F.No.V(27)15- 10/Jal/Garg Distillery/Adj/2008/2783, dt.29.03.2010, passed by CCE Nasik. 2. Briefly stated, the facts of the case are that the Appellants herein are engaged in the manufacture of dutiable and exempted excisable goods. The dispute relates to product GC-005, the classification of which has been claimed under CSH 2709.0000 of CETA 1985. Revenue alleging the classificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication order is liable to be set aside. In support, he has referred to following judgments:- i) Swami Containers Pvt. Ltd Vs CCE Pune-I 2001 (134) ELT 169 (Tri) upheld in ii) Swami Containers Pvt. Ltd Vs CCE Pune-I 2002 (145) ELT A 245 iii) J.D. Jones Co. Pvt. Ltd Vs CCE Calcutta-II 2003 (154) ELT 1-6 (Tri) iv) Craft Interiors Ltd Vs CCE Bangalore 2005 (187) ELT 113 (Tri) v) Thermoflex Cable Industries Vs CCE Mumbai-III 2006 (196) ELT 124 (Tri) vi) Vaspar Concepts (P) Ltd Vs CCE Bangalore 2006 (199) ELT 711 (Tri) vii) NTB International Pvt. Ltd Vs CCE Mumbai-III 2013 (296) ELT 271 (Tri) viii) Precision Rubber Industries (P) Ltd Vs CCE Mumbai 2016 (334) ELT 577 (SC) 4. On merit, the learned Advocate referring to HSN explanatory note of Chapter 2709, submitted that the said Chapter Heading covers crude petroleum oil and crude oil obtained from bitumen minerals, that is natural product. The said crude oil thus obtained continue to remain classified under the said heading even if they are subjected to following processes:- 1) Decantation 2) De-salting 3) Dehydration 4) Stabilisation in order to normalize the vapour pressure 5) Eliminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solvents such as tolune, xylene, acetone, ethyl acetate etc in different proportions to produce industrial thinner i.e. organic composite solvents and sold under brand name GC 001 and 002 classifying the same under CSH 3810.0010 of CETA, 1985 attracting proportionate duty. They were also blending GC 005 i.e. de-hydrated carbon oil with rubber process oil or furnace oil to produce special fuel oil which is marketed under brand name GC 004 which they have classified under CSH 2710.1050 of CETA 85 attracting appropriate Central Excise duty. 10. The samples of GC-005 drawn by Revenue were sent to chemical test by Dy.Chief Chemist JNPT, whereunder it was opined as other crude oil . The Director, CRCL, New Delhi in its report dt.28.10.2009, opined that it is topped crude and covered under CH 2710 of CETA 85; the re-testing of sample by Director CRCL New Delhi indicated the sample is in the form of dark brown coloured pasty mass; it is composed of mineral hydrocarbon oil having flash point more than 66oC; density at 15oC is 0.8393 gm/ml and ash content is 0.07% by weight. On a combined reading of the test reports, the Adjudicating Commissioner came to the conclusion that the produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it came up for the first time before the Tribunal. 9. Learned counsel for the appellant has referred to Warner Hindustan Ltd. v. Collector of Central Excise, Hyderabad [ 1999 (113) E.L.T. 24 (S.C.) wherein goods falling under Chapter Heading 3003.30 as per the assessee therein were sought to be classified under Chapter Heading 3003.19 as per the Revenue. The goods were, however, classified by the Tribunal under Chapter Heading 17.04. This Court expressed the view that the Tribunal was wrong in allowing the appeal of the Revenue and classifying the goods as items of confectionery under Heading 17.04. The correct course for the Tribunal to have followed was to have dismissed the appeal of the Revenue making it clear that it was open to the Revenue to issue a fresh show cause notice on the basis that the goods were classifiable under Heading 17.04. 10. Our attention has also been drawn to Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd. [ 2007 (215) E.L.T. 489 (S.C.)] wherein this Court held in Para 21 that it is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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