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TMI Blog2024 (9) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... goods manufactured by the appellant i.e. Drilling Rigs mounted on truck chassis/crawler is classified under chapter 8705. Once the classification is settled, the Notification No. 242/86-CE which is applicable to the goods falling under Chapter 8705 became eligible to the appellant. In the case of M/S. FIBROTEX (PROCESSORS) VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV [ 2015 (11) TMI 1587 - CESTAT MUMBAI] Tribunal has considered the similar issue wherein the facts was that initially the assessee had not claimed the benefit of notification but at a later stage the exemption was claimed and the same was extended to the assessee. Thus, even though the assessee did not claimed the exemption notification which otherwise eligible to the assessee in the classification list the benefit of the same claimed at a later stage cannot be denied. Condition of the notification that the appropriate duty of excise has been paid on the chassis of such vehicles and equipments used in manufacture of such vehicles - HELD THAT:- There is no case of the department that the chassis of vehicle on which the Drilling equipment was mounted and also on such equipment no duty paid. In this regard it is a set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 242/86-CE for goods falling under CTH 8705. Even the CBEC issued directions to consider the case suitably as well. The lower authorities, however, rejected the alternative exemption benefit on the following grounds:- a. The Appellant had never claimed classification under CETH 8705 during relevant period and exemption Notice. No.242/86-CE is a conditional one; b. Approval of CL claiming exemption and verification of fulfillment of conditions of exemption Notification can be examined only by assessing authority before whom CL is filed; c. Benefit of exemption Notice. No.242/86-CE cannot be extended belatedly in retrospective manner at this stage. 1.2 The appellant letter dated 05.02.2015 seeking benefit of notification No. 242/86-CE dated 03.04.1986 in respect of clearances was responded by the Deputy Commissioner of Central Excise Customs, division Vadodara vide letter dated 26.02.2015 who did not accept the claim of notification No. 242/86-CE and directed the appellant to pay dues as confirmed under Order-in-Original dated 09.12.1991. Being aggrieved by the letter dated 26.02.2015, the appellant filed appeal before Commissioner (Appeals) who vide Order-In-Appeal VAD-EXCUS-001- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tri. - Mumbai) DURGABHAI DESHMUKH HOSPITAL AND RESEARCH CENTRE 2011 (272) E.L.T. 300 (Tri. - Bang.) CHHAJED FOODS PVT LTD 2024 (2) TMI 1320 - CESTAT AHMEDABAD 6. Be that as it may, the issue is one of complex interpretational nature of classification. The Hon'ble Tribunal had ruled the issue in favour of the Appellant on the classification, which was upturned by Hon'ble Apex Court. That the bonafide belief as well as lack of intention to evade duty can be well established from the facts and circumstances of the case. Even penalty was not imposed on the Appellant eventually. 7. The impugned order does not bring on record anything so as to even remotely suggest that the Appellant acted in a malafide manner, by resorting to any fraud, suppression or wilful misstatement with any intention to evade duty/tax payment. 8. In fact, Hon'ble CEGAT Order dt.28.10.93 at Para 7 categorically holds that the demands are time-barred already. There is nothing in the Hon'ble Apex Court decision which suggests there was any intention to evade duty on part of the Appellant even if the CL description was incomplete. 9. The demand therefore deserves to be quashed and set aside on merits a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No. 242/86-CE which is applicable to the goods falling under Chapter 8705 became eligible to the appellant. The lower authorities have contended that the appellant have not claimed the said exemption in their classification list. It is a settled law that even if at later stage the issue of classification is settled and according to the classification held by the higher authority if any benefit of exemption notification is otherwise available. The same can be claimed at a later stage also, in this regard the appellant have relied upon various judgments which directly apply in the fact of the present case. The relevant judgments are reproduced below:- a) In the case of Fibrotex Processors (Supra) Tribunal has considered the similar issue wherein the facts was that initially the assessee had not claimed the benefit of notification but at a later stage the exemption was claimed and the same was extended to the assessee. The relevant part of the judgment is reproduced below:- 7. As regards the submissions of the learned counsel that benefit of Notification No. 377/86-C.E. needs to be extended to them, we find strong force in the said contention. The said notification is reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Advocate that availability of exemption Notification is not squarely dependent upon the same being claimed in the Classification List. The appellants claimed the Notification No. 217/86 in their Classification List which was denied to them and it was in the alernative, that they staked their claim for exemption in respect of the said Notification No. 64/86. Reliance by the learned Advocate on the Tribunal s decision in the case of Kopran Chemicals Co. Ltd. v. Collector of Central Excise reported in 1990 (48) E.L.T. 569 (Tribunal), holding that the exemption benefit is to be given even if not claimed in the Classification List, is appropriate. As such, we hold that the appellants claim to the benefit of the said Notification is sustainable. c) The identical issue was considered in the case of Kopran Chemicals Co. Ltd. (Supra) wherein the exemption benefit was not claimed in the classification list, wherein it was held that only in failure to claim in the classification list that alone cannot disentitled the goods for exemption if the conditions of the relevant notification are otherwise fulfilled. In view of the above judgment it is settled that even though the assessee di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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