9911796707
TMI Blog2001 (4) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... filed classification declaration under Rule 173B of the Rules effective from 6-7-1998 classifying this product under Chapter 9 sub-heading 0903.10 (branded) and under 0903.90 (unbranded) of the CETA. They also mentioned in their classification declaration that they would be paying duty at the rate of 18% for the branded product and nil rate for unbranded and would be also availing exemption Notification No. 8/98-C.E., dated 2-6-1998, under protest. But it revealed that their branded product (jaljira) was appropriately classifiable under Chapter 21 (sub-heading 2108.99) of the CETA attracting 18% ad valorem rate of duty, while unbranded was classifiable under sub-heading 2108.91 of the CETA chargeable to nil rate of duty. It also appeared that the clearances of branded goods were to be taken into account while computing the aggregate value of the clearances for the purposes of deciding the exemption Notification No. 8/98-C.E., dated 2-6-1998 right from 1-4-1998 as the goods were dutiable at the rate of 18% even prior to 2-6-1998 in the financial year 1998-99. The statement of Shri Shushil Jalani, proprietor was also recorded 25-6-1998 wherein he gave the detail of clearances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing provided the resulting mixtures retain the essential character of spices included in this heading. The heading also includes products commonly known as 'Masalas'. Chapter 21 : Chapter heading 2108 reads - 'Edible preparations not elsewhere specified or included.' Chapter Note 9(b) of Chapter 21 reads — Preparations for use either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption." The bare perusal of Chapter Note 3 of Chapter 9 reproduced above show that it envisages classification thereunder only if the products satisfied the three conditions, namely, (a) Are mainly used as condiments, (b) Additions of other substances to spices shall not effect their inclusion under Chapter 9 provided the resulting mixture retains the essential character of spices; and (c) Are commonly known as masalas. The product jaljira of the appellants does not satisfy these conditions, as it is not used mainly as condiments, rather is used only cold drink after addition of water. By merely printing the words 'masala' on the packing of the jaljira by the appellants, did not make it a masala, in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he picture drawn by them on the packings. 10. The applicability of. the Board's Circular No. 205/39/96-CX, dated 30-4-1996 relied upon by the appellants, had been also rightly ruled out by the Commissioner in the impugned order, to the product jaljira of the appellants. That circular only laid down guidelines for classification of various traditional convenience food mixes, masalas, spices and condiments such as pulliyogare powder, vangibath mix, instant sambar mix, vangibath powder, sambar powder, instant bisibelebath rasan powder, bisibelebath masala, mix spiced chutney powder, cury powder, pickle masala, garam masala etc. under Chapters 9 and 21 of the CETA. But the product in question jaljira does not at all fall under Chapter 9 of the CETA being not commonly known as masala, but a drink, as observed above. 11. Moreover, even the. Board itself through its latest Circular No. 9/1/99-CX. 1, dated 21-12-2000 on the classification of jaljira masala, had clarified that this product was classifiable appropriately under Heading 21.08 of the CETA as essentially it is used as a drink in admixutre with water, in view of Chapter Note 9(b), under Chapter 21 of the CETA. This circular w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduct 'jaljira' by them. He has referred to the letter dated 3-3-1994 vide which the appellants had informed the Excise Department about their production jaljira, along with the production of other goods. 17.The learned SDR, on the other hand, has argued that since there was suppression of material facts about the production of the product 'jaljira' by the appellants, the extended period of limitation in view of the proviso appended to Section 11-A of the Act, had been rightly invoked against them. 18. It is well settled. that in order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years, in view of the proviso to sub-section (1) of Section 11-A of the Central Excises and Salt Act, 1944 against the assessee, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded, by reasons of either fraud or collusion or wilful mis-statement or suppression of facts or contravention of any provisions of the Act or the Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere manufacturing Jalani jaljira besides some Ayurvedic medicines which were also detailed by them in the letter itself. That being so, it could not be said that there was any suppression of the material facts about the production of the product Jalani jaljira, by the appellants from the Excise Department. 22. Even in the show. cause notice it had been nowhere specifically alleged that the appellants suppressed the manufacture of the product Jalani jaljira branded or unbranded from the Excise Department during the period in question. All that avered in para 9 of the notice was that the appellants suppressed the material fact of clearances beyond exemption limit and never filed declaration under Notification No. 13/92-C.E. (N.T.), dated 14-5-1992. Regarding the production of the product Jalani jaljira it was nowhere asserted in the show cause notice that the appellants kept the Revenue Department in dark. The receipt of the letter dated 3-3-1994 referred to and discussed above from the appellants by the Excise Department, had not been denied at all. 23.In CCE v. HMM Ltd. - 1995 (76) E.L.T. 497 (S.C.) it has been observed by the Supreme Court that the show cause notice must conta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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