2016 (11) TMI 402 - AT - Central Excise

Tribunal sets aside duty demand and penalty due to no suppression of fact by appellant

M/s Hindustan Unilever Ltd. Versus Commissioner of Central Excise, Belapur

The Tribunal partially allowed the appeal, setting aside the demand for duty for more than one year and the penalty under Section 11AC due to the absence ... Extended period of limitation - Classification of products namely (i) Knorr Annapurna 4 O‘Clock Tiffin - Chicken ‘n’ Spice (ii) Knorr Annapurna 4 O’Clock Tiffin - Saucy Masala (iii) Knorr Annapurna 4 O’Clock Tiffin - Tangy Twist - duty demand - Held that:- We find that irrespective of fact that the product name “Knorr Annapurna 4 O’Clock Tiffin” was prefix with the name of the product - Chicken ‘n’ spice, Saucy masala and Tangy twist but product remained same as were involved in the earlier case which was decided by this Tribunal in the appellant’s own case. Therefore the nature of product being manufacture by the appellant was very much known to the Department, therefore there is no suppression of fact on the part of the appellant. The appellant also bonafidely intimated to the Department about the manufacture of such goods. This also shows bonafide of the appellant. There is no suppression of fact or mis-declaration with intent to evade payment of duty on the part of the appellant, therefore the demand of the duty for more than one year is not sustainable. For the same reason, penalty under Section 11AC also not imposable. As per above discussion, we set aside the demand for a period more than one year from the date of show-cause notice and penalty imposed under Section 11AC is also set aside. The appeal is partly allowed in the above terms. The adjudicating authority is directed to re-quantify the duty as per the above order and recover the same, if any due from the appellant. Issues:Classification of products under different sub-headings and rates of duty - Suppression of facts and mis-declaration for duty evasion - Applicability of extended period for demand and penalty under Section 11AC.Classification of Products:The issue revolved around the classification of products, namely Knorr Annapurna 4 O'Clock Tiffin variants, where the appellant claimed classification under Sub-heading 0903.10 with Nil rate of duty, while the Department proposed classification under Sub-heading 2108.99 with duty chargeable at 16%. The appellant relied on a previous Tribunal judgment in Hindustan Lever Ltd. Vs. Commissioner of Central Excise, Belapur [2007 (212) ELT 141 (Tri.-Mumbai)] to support their classification claim. The appellant contended that as the issue had attained finality in the previous case, the demand for classification for the subsequent period was not sustainable. The appellant argued that there was no suppression of fact as they had informed the Department about the intended manufacture of the products and had submitted the product labels, indicating their classification under Sub-heading 0903.10. The Tribunal found that despite the different product names, the nature of the products remained the same as in the earlier case, and the Department was aware of this fact. Therefore, the Tribunal held that there was no suppression of fact on the part of the appellant, and the demand for duty for more than one year and penalty under Section 11AC were not sustainable.Suppression of Facts and Mis-declaration:The appellant argued that the show-cause notice for the subsequent period could not be issued invoking the extended period or alleging suppression of fact under the proviso to Section 11A. They contended that they had informed the Department about the product classification and, therefore, there was no suppression of fact on their part. The Department, on the other hand, claimed that the suffix in the product name differentiated it from the earlier case, justifying the demand for the extended period and penalty under Section 11AC. The Tribunal, after considering both arguments, found that the product nature remained the same, and the appellant had informed the Department about the product manufacture, indicating no suppression of fact. Consequently, the Tribunal held that the demand for duty for more than one year and the penalty under Section 11AC were not imposable.Applicability of Extended Period and Penalty under Section 11AC:The Department contended that the suffix in the product name differentiated the present case from the earlier Tribunal judgment, justifying the demand for the extended period and penalty under Section 11AC. However, the Tribunal disagreed, stating that despite the product name suffix, the nature of the products remained the same, and the Department was aware of this fact. The Tribunal held that there was no suppression of fact or mis-declaration by the appellant, and thus, the demand for duty for more than one year and penalty under Section 11AC were set aside. The Tribunal directed the adjudicating authority to re-quantify the duty as per the order and recover any amount due from the appellant.In conclusion, the Tribunal partially allowed the appeal, setting aside the demand for duty for more than one year and the penalty under Section 11AC due to the absence of suppression of fact or mis-declaration by the appellant regarding the classification of the products.