TaxTMI 
TaxTMI 
2015 (10) TMI 2267
X X X X Extracts X X X X
X X X X Extracts X X X X
....e and Heptane. The assessee was classifying the two items under Heading 2710.90. One of the items viz. Iso Pentane was captively consumed as a fuel by burning the same. The second item viz. Heptane was being cleared on payment of duty under Heading 2710.90. Revenues case is that both the items are classifiable under Heading 2710.13 and are chargeable to duty accordingly. On the basis of an intelligence about the mis-classification of the goods, DGCI officials investigated and in the process, recorded certain statements and also got the sample of Heptane tested from Deputy Chief Chemist. Certain test reports were also recovered from the assessee pertaining to their goods and after investigation, a show cause notice dated 25.6.2001 was issue....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sification of the goods. The assessee has also filed the appeal on the grounds that the Commissioner (Appeals) ought to have decided the case himself instead of remanding the case to the lower authority for redetermination of the classification of Heptane and Iso Pentane Mix, since all the relevant materials for determining the classification were given by the assessee and were available with the Commissioner (Appeals). 4. Learned counsel for the assessee submits that Heading 27.10 covers various petroleum oils and oils obtained from bituminous minerals other than crude and the first sub-heading covers motor spirit, that is to say, any hydrocarbon oil which has its flash point below 25:C, and which either by itself or in admixture with a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....submitted the following case laws in support of his contention that since the Revenue has not been able to satisfy the second criteria, their appeal should have been allowed by the Commissioner (Appeals). (i) Jagdamba Petroleum P. Ltd. vs. CCE reported in 2004 (163) ELT 88 (T); (ii) CCE vs. Jagdamba Petroleum P. Ltd. reported in 2007 (212) ELT A112 (SC); (iii) Indu Nissan Oxo Chem Industries Ltd. vs. CCE reported in 1998 (101) ELT 201 (T); (iv) Ram Remedies Pvt. Ltd. vs. CCE reported in 2010 (254) ELT 170; (v) CCE vs. Viman Chemicals P. Ltd. reported in 2005 (179) ELT 208 (T); (vi) Silverchem Industries Pvt. Ltd. vs. CCE reported in 2003 (155) ELT 204 (T); (vii) Indian Oil Corpn....
X X X X Extracts X X X X
X X X X Extracts X X X X
....use notice and also placed before the first adjudicating authority. He further submitted that none of these statements have been retracted and the assessee themselves were convinced during investigation and had paid the duty amount of Rs. 9,50,932/- voluntarily without any protest. Learned AR also submitted that reliance on the judgment in the case of CCE vs. J.L. Morison reported in 1986 (25) ELT 660 (Kar.) is misplaced, as in that case no test reports to identify the contents of the goods were available and there were no documentary evidences. However, in the present case, these details are available. Learned AR also submitted various case laws mentioned in the grounds of appeal to support the departments contention that on the basis of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng covering specific goods while Heading 2710.90 is a residuary heading for Heading 27.10. The goods can be classified under Heading 2710.90 only if these are not classifiable under the first sub-heading i.e. Motor spirit, that is to say, any hydrocarbon oil (excluding crude mineral oil) which has its flash point below 250C, and which either by itself or in admixture with any other substance, is suitable for use as fuel in spark ignition engines. 7. We find that both the Revenue as also the assessee in their grounds of appeal have urged that the Commissioner (Appeals) should have decided himself instead of remanding the matter. Revenues contention is that the main terms of remand is to get the goods retested, but the goods are not being....