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TMI Blog2023 (9) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... inions placed on record by the appellant along with the opinion given by IIT, Madras before concluding the classification of the above products. Since the valuation under Section 4A of the Central Excise Act, 1944 depends on the classification of the products, the same may be considered after redetermining the classification based on the technical reports. Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... 9010 52 Nitoprime 382440 32081090 53 Nitoproof 382440 32100090 54 Proofex Torchseal 382440 32100090 2.2 The learned counsel submitted that serial number 1 to 13 of the table below, there is no change in the rate of duty and as such, no revenue implication, hence, they accepted the said classification by the Commissioner. Sl.No. Product As classified by M/s. FCIPL Now reclassified under CSH 1 Conbextra GP series 38244090 38245090 2 Conbextra AT 38244090 38245090 3 Conbextra HES 38244090 38245090 4 Conbextra HF 38244090 38245090 5 Conbextra HR 38244090 38245090 6 Conbextra UHS 38244090 38245090 7 Conbextra UW 38244090 38245090 8 Expocrete EC 38244090 38245090 9 Nitobond SBR 38244090 38245090 10 Nitoflor Hardtop/Hardwear/Level Crete 38244090 38245090 11 Superpatch 38244090 38245090 12 Renderoc 38244090 38245090 13 Epoxy Nitozinc Primers 38244090 38245090 2.3 He further submits that the dispute is limited to serial number 14 to 54 of the above list at para 2.1. With regard to the 14 products mentioned below, the classification is based on opinion given by IIT Madras, hence they accept the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 32081090 53 Nitoproof 382440 32100090 54 Proofex Torchseal 382440 32100090 The learned counsel claims that the classification done by the Commissioner without any evidence or any test reports or any expert opinion is baseless and needs to be set aside. Based on various expert opinions such as technical opinion provided by Civil-Aid Techno clinic Private Limited, Bangalore, the impugned products are classifiable under Chapter Sub-Heading 3824 40 10 and not under Chapter Sub-Heading 3824 90 90. He further submitted that the Revenue did not get the products tested by any Chemical Examiner of the Department neither have obtained any technical opinion of a recognised testing agency; and in the absence of any such reports, the submissions made by the appellant on the basis of technical opinions should not be brushed aside. To substantiate this claim, they have relied upon the following decisions: * Bharat Textile Processing vs CC, Tuticorin: 2004 (171) ELT 86 (T) * Wipro GE Medical System Ltd. vs. CC: 2006 (206) ELT 400 (T) * Inter-continental (India) Ltd. vs. UOI: 2003 (154) ELT 37 (Guj.) * CCE, Nagpur vs. DCL Polyesters Ltd.: 2000 (122) ELT 911 (Tri.) 2.5 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties) Rules, 1977. Rule 2A of the above Rules reads as follows: The provisions of this chapter shall not apply to a) packaged of commodities containing community of more than 25 kg over 25 L excluding cement and fertiliser sold in bags upto 50 kg; and b) packaged commodities meant for Industrial consumers or Institutional consumers. Explanation:- for the purpose of this rule a) Institutional consumers means those consumers who buy packaged commodities directly from the manufacturers/Packers for service industry like transportation (including airways, railways), hotel or any other similar service industry. b) Industrial consumer means those consumers who buy packaged commodities directly from the manufacturers/Packers for using the product in their industry for production etc; The Commissioner in the impugned order dated 31.10.2013 at para 49 has clearly stated that the unit quantity packages in respect of the above products did not exceed 25 kgs. He has extracted copies of invoices to show that the clearances were made to building contractors, applicators, distributors and on stock transfers to their own depots. The appellant has also produced various copies of invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant along with the opinion given by IIT, Madras before concluding the classification of the above 27 products as listed at para 2.4. Since the valuation under Section 4A of the Central Excise Act, 1944 depends on the classification of the products, the same may be considered after redetermining the classification based on the technical reports referred above. 4.4 The appellants have also pleaded that regular returns were being filed classification was approved from time to time and it was in the knowledge of the department, therefore, the question of invoking proviso to Section 11A does not arise. Without any opinion on these facts, we remand the matter to the Commissioner to dwell upon classification, valuation and for demanding duty for the extended period after taking into consideration the fact that classifications were approved and regular returns were filed regularly by the appellant. Findings in respect of Appeal No. E/20158/2019 5. The show-cause notice in respect of this appeal was for the period February 2016 to December 2016, which is well within the normal period of one year under Section 11A(1) of Central Excise Act, 1944. However, the issue on merits remai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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