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TMI Blog2023 (10) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... R and not EMD - The Tribunal thus held that the product is classifiable under 3808.10. By judicial discipline, following the above decision of the Tribunal and hold that the goods viz. the combipack consisting of EMD MRR are classifiable under 38089191 as determined by the department. The issue on merits is answered in favour of the Revenue and against the assessee. Levy of penalty u/r 25 of Central Excise Rules, 2002 - HELD THAT:- The first Show cause notice has been issued invoking the extended period of limitation alleging suppression of facts with an intent to evade payment of duty. The adjudicating authority has rendered a finding that the issue was contentious and there were divergent views prevailing during the relevant tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BIPACK GK ADV ACTV + SYSTEM, GK SIL POW 45 CMB CSD, GK POWERLITE COM CSD and GK SIL POWER 45N CMB and put them in a Combipack, consisting of Mosquito Repellant Refill (Bought out item) and one Electrical Mosquito Repellant Device (hereinafter referred to as EMD). The appellant classified the goods under the Heading 85167920 of CETA 1985 and cleared them on payment of duty under Section 4A value of RSP availing the abatement. 2. During the period from November 2007 to March 2012, the abatement applicable to EMDs falling under Chapter sub-heading 85167920 was 40% and the abatement applicable to Mosquito Repellant Refills (hereinafter referred to as MRR) falling under Chapter sub-heading 38089191 was 35%, 33% and 30% under Notification No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod is not invokable and the demand for the period November 2007 to October 2011 cannot sustain. The demand was restricted to period November 2011 to March 2012 being the normal period. The subsequent demands for the period April 2012 to January 2013 was also confirmed along with interest. The proposal to impose penalty under Section 11AC of the Central Excise Act, 1944 was dropped. However, penalty of Rs.5 lakhs was imposed under Rule 25 of Central Excise Rules, 2002. Aggrieved by such order, the appellant is now before the Tribunal. 4. On behalf of the appellant, learned counsel Sri Hari Radhakrishnan appeared and argued the matter. It is submitted by the learned counsel that appellant was served with show cause notice No.63/2012 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted by the appellant under 85167920 is correct and appropriate. Further when the goods are not classifiable under Rule 3 (a) and Rule 3 (b), as per Rule 3 (c), the goods have to be classified under heading which occurs last in numerical order. In such circumstances also, the classification adopted by the appellant is more appropriate. To canvas that the essential character of the combipack is that of the EMD and not MRR the learned counsel relied upon the decision in the case of United States Customs Ruling NY E85827 dt. 02.08.1999. Ld. Counsel prayed that the appeal may be allowed. 7. Ld. A.R Mr. N. Sathyanarayanan appeared for the department and supported the findings in the impugned order. 8. Heard both sides. The issue under co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such combination pack for using it as mosquito repellent, which purpose is achieved by vaporizing the liquid pesticide by subjecting it to heat with the aid of electro thermic apparatus. This imply that electro thermic apparatus is merely a delivery machine but the real mosquito repellent is liquid pesticides contained in refill bottle. Thus, we find that the liquid pesticides bottle in the combination pack gives essential character of mosquito repellent to the combination pack. Thus, in our view, the right classification for the combipack would be under Chapter heading 3808.10 which relates to insecticides etc. and not under Chapter heading 8516 relating to electric heating apparatus. 16 . In view of the above, we find it difficult to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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