9911796707
TMI Blog2003 (10) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the adjudicating authority classifying the goods under sub-heading 2710.13 is not sustainable. The impugned order does not contain anything in rebuttal of the classification claimed by the assessee, either. We, therefore, approve the classification claimed by the assessee. As we have held the substantial issue in favour of the appellants, it goes without saying that the penalty imposed on them cannot be sustained. In the result, the impugned order is set aside and the appeal is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Tariff Act. They also alleged suppression and misdeclaration of facts against the assessee and held them to be liable to penalty. The assessee, however, did not submit any reply to the show cause notices, nor did they appear for personal hearing before the adjudicating authority. Consequently, the impugned order was passed by the Commissioner against the assessee ex parte. In the present appeal, the assessee has inter alia raised plea of violation of natural justice. We have scrutinized the relevant aspects and are not impressed with this plea. We would rather like to dispose of the case on its merits. 3. Reiterating the relevant grounds of the appeal, the learned Counsel for the appellants submitted that the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Act. He submitted that, though the impugned order stated that the appellants had wilfully mis-stated classification of the products with intention to evade payment of duty, it did not disclose any basis for the finding. The penal action, therefore, was not sustainable. 4. The learned DR reiterated the findings of the Commissioner. He referred to the Chemical Examiner's report and claimed that the same supported the classification held by the Commissioner. The DR also referred to the declaration filed by the assessee under Rule 173B and submitted that relevant particulars such as flash point were not disclosed therein. Suppression of facts was rightly found against them by the adjudicating authority. 5. We have examined the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .13 are that the flash points of the liquids are below 25ºC and that the goods are suitable for use as fuel either by themselves or in admixture with any other substance in spark ignition engine. The Chemical Examiner's report also shows the flash points of the samples below 25°C. But this report also states thus :- "However, at present, it is not possible for this lab to say whether each of the products under reference by itself or in admixture with any other substance is suitable for use as fuel in spark ignition engine or otherwise." The report, therefore, is no basis for the finding recorded by the Commissioner that admixture of the subject goods with any other substance may be suitable for use as fuel in spark ignition engine. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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