TaxTMI 
TaxTMI 
2006 (9) TMI 444
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....ff. They have been issued excise licence. They filed declaration No. II/07/98-99 (Range S.No. 155/20/98-99) seeking classification of their product "Jelly-Belly" under heading 2001.10 @ 8% ad valorem w.e.f. 28-2-99. Subsequently, another declaration No. 51/20/99-2000 was submitted on 28-6-99 claiming classification of the same product under heading 1704.90 again chargeable to duty @ 8% ad valorem. 2. A SCN was issued contending that the correct classification of 'Jelly-Belly' would be under 2001.10 and the change of classification as claimed under the letter dt. 28-6-99 was not acceptable. After considering the assessee's reply, Jurisdictional Dy. Commissioner of Central Excise, Division Gwalior passed order No. 120/CEX/DEM/DC/2000 ....
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....Jurisdictional Dy. Commissioner. 5. The aforesaid two notices were adjudicated by Commissioner of Central Excise under adjudication order 98-99 dt. 30-11-05. The Commissioner upheld the contentions that correct classification of 'Jelly Belly' was under heading 2001.10 and that there was short levy as alleged. The order therefore, demanded payment of duty as well as interest from the appellant. The Commissioner dropped the proposal for imposition of penalty. The present appeals are directed against that order of adjudication. 6. Heard both sides and perused the records. 7. The submission of the Ld. Counsel for the appellants is that the classification claim of the appellant was under heading 1704 and that claim ....
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....re revenue disapproved the classification claimed by the appellant and passed an order of adjudication. The contention is that once the classification was adjudicated, an order was passed and the same had become final for want of any appeal, the matter remains, settled between parties and Section 11A has no application. The submission of the Ld. Counsel is that revenue authorities are dilly-dallying on the issue of classification and passing conflicting orders only for the purpose of imposing levy at the higher of the prevailing rates on the appellant. The contention is that orders are being passed not based on the merits of the issue of classification; but merely to impose the higher rate and this is not permissible in terms of the j....
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....he grounds for reopening the classification is succinctly mentioned. It is observed from the provisions of Section 11A, that any duty of excise has been levied or paid or has been short levied or short paid, whether such non levy or non-payment, short levy or short payment as the case may be was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods, the demand can be made within one year. For the sake of convenience, Section 11A reproduced below: SECTION 11A - Recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded....