TaxTMI 
TaxTMI 
2010 (9) TMI 608
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....des penalty of Rs. 5,00,000/- against the partner. 2. The appellants are engaged in manufacture of various instruments and appliances used in Medical, Surgical, Dental or Veterinary Sciences including I.V. Cannulas classifiable under Chapter Heading 9018 of first schedule to the Central Excise Tariff Act, 1985. 3. In the course of scrutiny of records, it was revealed that the appellants were availing benefit of Notification No. 6/2006-C.E., dated 1st March 2006 readwith notification No. 6/2002-C.E., dated 1st March 2002 in relation to the I.V. Cannulas manufactured by them in spite of the fact that they were not entitled to avail such benefit in the facts and circumstances of the case, and the said benefit having been availed during the period from October 2004 to February 2007. A show cause notice dated 17th June 2008, while invoking the extended period of limitation, came to be issued to the appellants. The same was contested by the appellants. However, the Additional Commissioner, Kanpur confirmed the demand as stated above and the Commissioner (Appeals) refused to interfere in the said order. 4. The learned advocate for the appellants placing reliance in....
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....observation clearly applies to the facts of the case in hand. He further submitted that the appellants have not been able to produce any of the documents on record, which could disclose that they had revealed to the department that they had been manufacturing I.V. Cannulas prior to the period in that regard, which were asked for in September 2007. It was only in answer to the query made under letter dated 24th September 2007 that the said fact was disclosed. Being so, according to the department, it was justified in invoking the extended period of limitation. 6. The learned advocate for the appellants in rejoinder submitted that the decision of Saberwal Surgical (P) Ltd. case being not interfered with by the Apex Court, at the interim stage, it would be binding upon the Tribunal and considering the declaration which was made by the appellants in relation to the product which was being manufactured, there is no case for justifying invocation of extended period of limitation. 7. At the outset, it is pertinent to note that the appellants do not dispute their liability to pay the duty in relation to the said product and non-availability of exemption under the said notif....
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....he Apex court was dealing with the issue as to whether Single Panel Circuit Breaker are classifiable under CSH 8535.00 "rate of duty 5%" as claimed by the assessee or under CSH rate of duty 20% as per the revenue and whether the Board Circular F. No. 32/8/94-C.X. (Section 37B ordered) dated 14-7-2004 had clarified that the Single Panel Circuit Breaker were classifiable under Chapter 85.35 and 85.37 and after taking into consideration the rival contentions, held thus :- "15. In the instant case, assessee had filed a classification list effective from 1-3-1993, classifying the Single Panel Circuit Breakers under Heading No. 85.35 and claiming concessional rate of duty at 5% under Notification No. 52/93 dated 28-2-1993. The said classification list was approved by the jurisdictional Assistant Commissioner, on 10-6-1993. Thereafter, the assessee cleared the said goods in accordance with the approved classification list. When this approved classification was proposed to be revised to reclassify the Single Panel Circuit Breakers under Heading No. 85.37 of the tariff, such re-classification can take effect only prospectively from the date of communication of the show cause notice ....
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....ision of the Apex Court in Suchitra Components Ltd. and Mysore Electricals Industries Ltd. can be of no help in the matter in hand to justify the contention on behalf of the appellants that the exemption cannot be denied to the appellants for the period prior to 6th February 2007. 12. As regards the decision of the Tribunal in the case of Saberwal Surgical (P) Ltd., the same was considered by the Tribunal in Becton Dickinson India Pvt. Ltd. case (supra) and has observed thus :- "5. The impugned order, prima facie, discloses that authorities below have clearly brought out the distinguishing feature in the matter with reference to the decision in Saberwal Surgical case. The decision in Saberwal Surgical case as pointed out by learned Advocate for the respondent was in relation to a product, namely, 'scalp vein infusion sets' whereas in the case in hand, matter relates to disposable cannula for blood vessels. That apart, the decision in Saberwal Surgical case did not deal with the analysis of entry No. 34 in List No. 37 of the Notification No. 6/2002. Besides, the decision in Saberwal Surgical case was based on number of certificates of experts produced by the assessee....
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....ice relates to the disclosure made subsequent to the query made under letter dated 24th September 2007. 14. The Adjudicating Authority while dealing with the issue relating to the invocation of extended period of limitation has held thus :- "The party had filed intimations regarding rate of duty w.e.f. 1-4-2005 to 1-4-2006 during the material period. In the intimation filed by the party, it is noticed that they had declared the goods as 'Disposable and non-disposable cannula for Aorta, Vena Cavea and similar veins and blood vessels and Cannula for Intra-Corporal Spaces'. I observe that in the intimations the party had not specifically declared their goods in question as I.V. Cannulas. Further, on perusal of the ER-1 returns filed by the party during the relevant period, it is noticed that they had also not shown the details of I.V. Cannulas specifically and even there is no mention of the term - 'I.V. Cannulas' in the ER-1's. During the course of investigation, it was found that the party had manufactured and cleared the goods in question i.e. I.V. Cannulas but its details were suppressed in the ER-1 returns with intention to evade payment of duty due thereon. The ....