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TMI Blog2019 (12) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to chapter heading 2710 in the chemical examiner s report but there is nothing in the notice alleging that why the goods could not be classified under heading 2709. The notice simply seeks to appropriate the duty already paid by the appellant under protest. It is seen that in the Show Cause Notice there is no allegation as to why the classification claimed by the appellant viz 2709 should not be changed. And it also does not suggest why the goods should be classified under any particular heading. Thus, it is apparent that the appellants have been rightly pointing out that no demand can be made without classifying the finished products sought to be levied to tax. It is seen from the orders of lower authorities that they have only examined why the product is not classifiable under chapter heading 2709 sought by the appellant but none of them deal with the issue as to where the goods should have been classified or what should be a correct classification of goods. There is no allegation in the show cause notice seeking to change the classification of goods and there are no findings to that effect. Revenue cannot seek to demand duty without first classifying the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax 004 were drawn by the Revenue. On the basis on advice of their consultant and as per decision of Tribunal in the case of Oil India Ltd.- 2002 (148) ELT 802 , the appellant concluded that the good should be classifiable under heading 2709. On 28/06/2006, the chemical examiner vide his letter dated 28/06/2006 held that the goods cannot be covered under heading 2709. He also stated the physical /chemical characteristics of Vermax 002 are necessary to be checked to ascertain the correct category and wanted sample of Vermax 002. Vide his letter dated 30/06/ 2006, the appellant was advised by Revenue not to clear the goods under exemption until finalisation of classification. On 01/07/2006, the appellant s company classified these products under heading 2709 and started clearing at nil rate of duty. Thereafter on 12/09/ 2006 Revenue conducted raid and seized goods worth ₹ 13,79,758/-. On 19/09/2006, the chemical examiner in his report stated that Vermax 004 is mainly composed of mineral hydrocarbon and has to the characteristics of residual fuel oil. Regarding Vermax 002, he reported that the said product is in the form of very light yellow coloured clear liquid and is compose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l also contested the penalty imposed on the Managing Director asserting that the issue is a technical issue and the difference of opinion and therefore, no penalty on the Managing Director can be imposed. 3. Learned Authorised Representative relies on the impugned order. He argued that redemption fine should have been imposed in lieu of confiscation as the appellant had clearly malafidely cleared the goods without payment of duty. He also asserted that the impugned order wrongly gives an option of reduced rate of duty in terms of first proviso to section 11AC. The said offer was already extended in the order in original. 4. We have gone through rival submissions. We find that the essential dispute is if the goods manufactured by appellant namely Vermax 002 and Vermax 004 are chargeable to Central Excise duty or not. The appellants were paying duty on the said goods till 30/06/2006. However, were simultaneously disputing the leviability of duty. On the advice of the consultant, they stopped paying duty on such goods from 01/07/2006 and started availing exemption. The raw material used by them for the manufacture of the aforesaid articles was co-mingled oil, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty should not be imposed upon unit under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944 It is seen that in the Show Cause Notice there is no allegation as to why the classification claimed by the appellant viz 2709 should not be changed. And it also does not suggest why the goods should be classified under any particular heading. 4.2 It is seen that before the first appellate authority also, the appellant had contended as follows: (v) Once the classification declaration is made by the assessee and the Revenue does not agree with the same, it is for the Revenue to take proper action at the relevant time. But in the guise of proper action, revenue cannot book an offence case on 12-09-2006, when appellants wrote a letter regarding proposal for changing the classification on 12-06-2006 to the JDC. This action by Revenue is completely malafide as well as illegal. The said assertion of the appellant was summarily dismissed in impugned order by observing as following: There are liberties as well as bindings under the procedure of self assessment on the part of the appellant. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts obtaining in the case, and the decision rendered by the Tribunal, no question of law arises for consideration of this Court. According to the learned Senior Counsel, the Tribunal had, in its decision, adverted to undisputed facts, and simply applied the law, which had been laid down by the Supreme Court in the matter of : Metal Forgings v. Union of India - 2002 (146) E.L.T. 241 (S.C.), and thus, the matter did not require any interference by this Court. 6.2 In a nutshell, Mr. Venkataraman, submitted that the appeal had no merit and ought to be dismissed at this stage itself. 7 . We have heard the learned counsel for the parties and perused the record. 8 . Upon perusal of the record, what clearly emerges is as follows : (i) The SCN, dated December 1992, was served, admittedly, on IOCL. (ii) The SCN took objection to the classification of the subject products by IOCL. (iii) The SCN did not indicate as the sub-heading, under which, the subject products ought to have been classified. (iv) The SCN did not indicate the period, for which, duty was bein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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