2015 (12) TMI 10 - AT - Central Excise

Tribunal waives pre-deposit, stays recovery in henna classification appeal.

M/s. Neha Herbals Pvt. Ltd., Shri Vikas Gupta Versus CCE, Delhi-I

M/s. Neha Herbals Pvt. Ltd., Shri Vikas Gupta Versus CCE, Delhi-I - 2015 (328) E.L.T. 468 (Tri. - Del.) Issues Involved:1. Classification of Henna Products under Central Excise Tariff2. Invocation of Extended Limitation Period3. Requirement of Pre-Deposit for Hearing of AppealIssue-wise Detailed Analysis:1. Classification of Henna Products under Central Excise Tariff:The appellant, M/s. Neha Herbals Pvt. Ltd., received henna powder in bulk and manufactured two products: henna powder in retail packs and henna cones. Prior to January 1, 2007, henna powder was covered under sub-heading 14041019 of the Central Excise Tariff with a nil rate of duty. However, by Section 67(d) of the Finance Act, 2006, heading 1404 was amended, and sub-headings 14041011 to 14041090 were deleted. The department contended that post-amendment, henna products should be classified under heading 3304, which pertains to 'beauty or make-up preparations and preparations for the care of skin (other than medicaments).' The appellant argued that the Central Excise Tariff published by the Directorate of Publications of the Central Board of Excise and Customs still mentioned 'henna' under heading 1404 even after the amendment, leading them to believe that henna products continued to attract a nil rate of duty.2. Invocation of Extended Limitation Period:The Commissioner confirmed the duty demand by invoking the extended limitation period under proviso to Section 11A(1) of the Central Excise Act, 1944, alleging deliberate non-payment of duty and suppression of facts by the appellant. The appellant contested this, stating that the continued mention of 'henna' in the Central Excise Tariff post-amendment led them to a bona fide belief that their products were still covered under heading 1404. The Tribunal noted that the Central Excise Tariffs from 2007-2008 to 2012-2013 continued to mention 'henna' under heading 1404, and this mistake was only corrected in the 2013-14 tariff. Given this, the Tribunal held that the appellant could not be blamed for believing that henna powder was covered under heading 1404 and thus attracting a nil rate of duty. Consequently, the longer limitation period was deemed not invokable, rendering the bulk of the duty demand time-barred.3. Requirement of Pre-Deposit for Hearing of Appeal:The Tribunal considered the submissions from both sides and noted that the appellant had already deposited Rs. 20 lakh during the investigation. Given the circumstances and the prima facie view that the appellant could not be faulted for their belief regarding the classification of henna products, the Tribunal held that the amount already paid was sufficient for hearing the appeal. Therefore, the requirement for pre-deposit of the balance amount of duty demand, interest, and penalty by the appellant company and the pre-deposit of penalty by the director was waived. The recovery of these amounts was stayed, and the stay applications were disposed of accordingly.Conclusion:The Tribunal ruled in favor of the appellant by waiving the requirement of pre-deposit for the hearing of the appeal and stayed the recovery of the balance amounts. The decision was based on the continued mention of 'henna' in the Central Excise Tariff post-amendment, which led to a bona fide belief by the appellant regarding the classification of their products. The extended limitation period was deemed not applicable, making the bulk of the duty demand time-barred.