TaxTMI 
TaxTMI 
2011 (3) TMI 254
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....cause notice was issued for demand of Central Excise Duty and Education Cess along with proportion for imposition of penalty and demand of interest. Respondent-assessee contested the show cause notice on various grounds before the Adjudicating Authority. The Adjudicating Authority after considering the written and oral submissions, vide impugned order dropped the proceedings initiated by the said show cause notice dated 6.3.2006. Aggrieved by such an order, the revenue is in appeal. 3. The learned SDR while assailing the order, would draw our attention to the show cause notice. She would submit that the period involved in this case is from 1.3.2005 to 30.11.2005. It is her submission that with effect from 28.2.2005, a specific entry was inserted in the Chapter Heading No.28352500. It is her submission that once a specific Chapter entry for any product is given, then the classification of the said product cannot be done anywhere else. She would also draw our attention to the replies filed by the respondent-assessee before the Adjudicating Authority to demonstrate that the respondent-assessee had himself not given any specific grounds for classification of the product under....
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.... is a settled law. 4. The learned Sr. Counsel Shri Joseph Vellapally and Shri Thomas Vellapally, Counsel appeared on behalf of the respondent-assessee. The learned Sr. Counsel would draw our attention to the judgment of this Tribunal in the assessee s own case prior to 1.3.2005. He would also draw our attention to the dismissal of the appeal filed by the revenue against such order. He would submit that when the matter reached to Hon ble Supreme Court, it was against an Order-in-Original passed by the Adjudicating Authority on 23.4.1997. He would draw our attention to the said Order-in-Original and submit that the points raised by the learned SDR today were the same, which was raised and held against the assessee for the classification of the said finished products under Chapter Heading 2835. The very same arguments have been negatived by the Hon ble Supreme Court. He would also draw our attention to the Chapter Note of Chapter 23 prior to 1.3.2005 and post 1.3.2005 and submit that the said Chapter Heading Note has not undergone any change. He would also draw our attention to the HSN Note addressed by the learned SDR and submits that the HSN and the Central Excise Tariff, ....
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....g used in animal feeding classifiable in heading 23.03 prior to 28.2.2005 will now get classified under heading 2309 as preparations of a kind used in animal feedings . 17. As regards heading No.2835, the description prior to 28.2.2005 read as follows: 2835 2835.00 Phosphinates (hypophosphites), Phosphonates (Phosphites); phosphates and polyphosphates With effect from 28.2.2005, the revised description is as follows:- 2835 PHOSPHINATES (HYPOPHOSPHITES), PHOSPHONATES (PHOSPHITES) AND PHOSPHATES; POLYPHOSPHATES, WHETHER OR NOT CHEMICALLY DEFINED 283510 Phosphinates (hypophosphites) and Phosphonates (Phosphites): - Phosphates: 28352200 of mono-or disodium 28352500 Calcium hydrogen orthophosphate ( dicalcium phosphate ) 283526 Other phosphates of calcium 283529 Other - Polyphosphates 18. From the above, it may be seen that as far as the group of chemicals Phosphinates (hypophosphites), Phosphonates (Phosphites) and Phosphates are concerned, there is no change in the tariff description. Only in respect of polyphosphates , the terms whether or not chemically defined have been added in the new 8 digit tariff. In other words....
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....nclusion that the products manufactured by the respondent-assessee would not merit classification under Chapter Heading 2835 on the ground that the dicalcicum phosphate other than animal feed can only be brought into that heading. We find that the said factual findings of the Adjudicating Authority are not challenged by the revenue in their grounds of appeal. 5.3 In the revenue s appeal, the following are the grounds of appeal. A The reasoning of the Adjudicating Authority is not acceptable as Di-calcium Phosphate in question should have been treated as products of Chemical or Allied Industries meriting classification under CETH 28352500 attracting CENVAT duty @ 16% adv. and not as preparation of Animal Feed attracting nil rate of duty under Central Excise Tariff Head 23099090. B CENVAT Duty of Rs.1,55,02,597/- and Education Cess of Rs.3,10,052/- should have been confirmed under Section 11A along with interest under Rule 8 (3) and penalty under Rule 25 of the Central Excise Rules, 2002. It can be seen from the above reproduced grounds of appeal and the factual findings, revenue has not challenged the factual findings of the Adjudicating Authority. 5.4 ....