9911796707
TMI Blog2000 (8) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... 3212.90, was chargeable to Nil rate of duty; that similarly Notification No. 14/93, dated 28-2-1993 provided Nil rate of duty in respect of Henna Powder, falling under sub-heading 3203.00 or 3212.90. The issue regarding classification of Henna Powder came up for decision before the Appellate Tribunal in the case of Heena Export Corporation v. C.C.E., New Delhi - 1993 (67) E.L.T. 907. The Tribunal held, in that case, that Henna Powder in bulk is classificable under Heading 14.01 and Henna Powder in unit packings under Heading 33.05 of the Tariff; that the appeal filed against the order of the Tribunal was rejected by the Supreme Court; that though the decision was pronounced by the Tribunal on 11-6-1993, the Department continued to classify Henna Powder under Chapter 32 of the Central Excise Tariff which is evident from the various Notifications mentioned earlier; that only after the decision of the Tribunal was upheld by the Supreme Court, the Central Board of Excise and Customs issued a Circular No. 256/90/96-CX, dated 20-10-1996 in which it was mentioned that after rescinding of Notification No. 13/95 vide Notification No. 19/96, dated 23-7-1996, Henna Powder if classifiable und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be alleged that there was any deliberate suppression on the part of the Appellants so as to invoke extended period of limitation; that no mentioning of composition of goods in classification lists does not amount to suppression or mis-statement of facts. Reliance was placed on the decision in the case of C.C.E. v. Dewarance Macneills Co. Ltd., 1991 (56) E.L.T. 645 (T) wherein it was held that "the fact that the Respondents did not furnish the composition of their productions in the classification lists will not affect this Position ……….. The proper officer could very well ask the Respondents to furnish the composition of the goods before he approved the said lists. It is nobody's case that the Respondents did not furnish the composition in spite of being asked to do so. This being the position they cannot be held guilty of suppression or mis-statements of facts." Regarding imposition of penalty equivalent to the amount of duty under Rule 173Q read with Section 11AC by the Commissioner under the impugned Order, the ld. Counsel submitted that as the entire period of demand of duty falls prior to the date of introduction of Section 11AC in the Central Excise Act the penalty under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hair and it will fall under 32.03 as the process of manufacture involves using of week acid. The ld. SDR emphasised that that Appellants had concealed the full description of the goods as appearing in invoices in their classification lists/declaration. In support of his contention, he relied upon the decision in the case of Jai Shri Engineering Company Private Ltd. v. C.C.E. - 1989 (40) E.L.T. 214 (S.C.), ICE and Diesel Engineer Works v. C.C.E. - 1991 (53) E.L.T. 70; Hindustan Playing Cards v. C.C.E. - 1993 (68) E.L.T. 906 (T); Limenaph Chemicals v. U.O.I. - 1993 (68) E.L.T. 77 and Indrol Lubricants and Speciality Ltd. v. C.C.E. - 1994 (69) E.L.T. 325 (T). In Indrol Lubricants case it was held that extended period of limitation is invokable as the chemical composition of the products, its character and use were not declared by the assessee while claiming low rate of duty. 4. In reply, Shri L.P. Asthana submitted that even though the Department was aware of the Tribunal's decision in the case of Heena Exports no action was taken to revise the classification lists; that when the exemption in respect of Henna Powder was given in general terms under the Notification from time to tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was any doubt, the Department should have, asked the Appellants to indicate its use. The Appellants had claimed the benefit of Notification No. 27/90 as amended. Merely because they have not indicated the use of the impugned goods in their classification lists it cannot be alleged, in the facts and circumstances of the present matter that they have wilfully suppressed facts or made wilful mis-statement of facts. This was the view held by the Tribunal in the case of Dewarance Macneill Coy. Ltd., supra. The decision relied upon by the ld SDR are not applicable to the facts of the present matter. For example, in the case of Limenaph Chemicals, extended period of 5 years was held to be invokable by Madras High Court as there was a deliberate mis-statement on the part of petitioner with regard to the classification of the product and the entitlement of the same to exemption under the Notification. In that case the petitioner was claimining his product as Sagol and the Notification 5/97 exempted cement commonly known as Sagol and obtained by heating lime stone and burnt coal in a kiln. On chemical analysis, the product was found to be calcium hydroxide in powder form and not cement ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
