2011 (2) TMI 1004

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....wed the appeal filed by the respondents against the order passed by the adjudicating authority and has set aside the demand and penalty. The Assistant Commissioner, Gwalior by his order dated 31.08.2004 had confirmed the duty amounting to Rs. 4,62,134/- with interest and penalty of Rs. 10,000/-.   3. The respondents are engaged in manufacture of fruit jelly with brand name Jelly-Belly filled in plastic containers in the shape of toys, falling under chapter heading No. 2001 of the first schedule to the Central Excise Tariff Act, 1985. On visit to the factory premises of the respondents by the preventive officer by the excise department, it was revealed on 16.01.2003 that the respondents had been classifying the product under chapter ....

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....y the respondents. Consequently, the show cause notice dated 28.04.2004 came to be issued which was contested by the respondents under reply dated 14.07.2004. The adjudicating authority by order dated 31.08.2004 confirmed the demand of duty to the tune of Rs.462134/- with interest and penalty of Rs. 10,000/-. While confirming the said duty, the adjudicating authority observed that the product in question was marketable and hence excisable. Being aggrieved by the said order, the respondents carried the matter in appeal before the Commissioner (Appeals), Indore and by the impugned order, the said order of the adjudicating authority has been set aside. While setting aside the order of the adjudicating authority, the learned Commissioner (Appea....

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....marketability, the product cannot be classified as excisable goods, no fault can be find with the impugned order.   5. Once, it is evidently clear from the records that for the earlier period in relation to the respondents own case and pertaining to the same product the adjudicating authority had held the product to be marketable and, therefore, excisable and the same was confirmed by the Commissioner (Appeals). It was not permissible for the Commissioner (Appeals) to take a different view for the subsequent period in the absence of any additional material being placed on record to support such different view. Undisputedly, there was no additional material available on record to take a view different from the one taken in the earlie....