TaxTMI 
TaxTMI 
2019 (1) TMI 174
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....process of said product vide their application dated 14.06.2004. In September 2005, the Central Excise officers visited the appellants premises and drew samples. The samples were sent to Chemical Examiner located at Vadodara. The Chemical Examiner reported that the sample examined by them fulfils both requirements of motor spirit i.e. fresh point is below 20 Degree and it is suitable for use in spark ignition engine in admixture. The appellant sought certain clarification from the Revenue regarding the test conducted and Revenue vide letter dated 24.04.2006 clarified those doubts. He pointed out that one of the doubts raised by the appellant was the percentage of mixed fuel oil used in the motor spirit for testing the sample as admixture. The Superintendent vide letter dated 24.04.2006 clarified that the percentage of mixed fuel oil in mixture with motor gasoline for determining ROM was 10% V/V. Thereafter SCN for the period July 2004 to August 2006 was issued to the appellant on 06.01.2007 seeking to classify mixed fuel oil as motor spirit classified under Tariff heading 2710.19 (upto 31.03.2005) and w.e.f. 01.04.2005 it was sought to be classified under Heading 2710 11 19. The ap....
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.... of duty. He relied on the following case law. • Ram Remedies (P) Ltd. 2010 (254) ELT 170 • Northern Plastic Ltd. 1998 (101) ELT 549 (SC) • Gaurav Enterprises 2006 (193) ELT 532 (Bom) 2.3 Ld. Counsel further argued that Revenue in its appeal seeks to enhancement of penalty from Rs. 50 Lakh to equivalent penalty amounting to Rs. 2,86,93,458/- under Section 11CE of the Central Excise Act. He pointed out that the SCN for the period September 2007 to March 2008 was a 3rd SCN in a series of SCN. He argued that in these circumstances invocation of Section 11AC is incorrect. 3. Ld. AR Relies on the impugned order. He pointed out that earlier the matter was remanded by Tribunal in respect of OIO No. 10 & 11-Cum media-II/MP/2007-08 dated 20.12.2007. He argued that the matter was remanded for examination of the two points specifically mentioned in the said order. He pointed out that chemical examiners report has not been challenged by the appellant and no cross examination has been sought of chemical examiner. He further argued that Superintendent (Preventive) in his letter dated 28.04.2006 has clarified as follows after checking with Scientist of....
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....wo criteria: one is the flash point; the other is that the mineral oil should, either by itself or in admixture with any other substance, be suitable for use as fuel for internal combustion engine. Satisfaction with both criteria is required. The departmental sample no doubt showed fulfilment of the flash point criterion. But, in a stoutly disputed case such as the present one, it was imperative on the part of the department to test the mineral oil also to determine whether it fulfilled the criterion of suitability for use as fuel in internal combustion engines. This, the department failed to do even though it was seeking to tax the oil as motor spirit." (emphasis supplied) Thus to qualify as 'motor spirit' the product has to answer to the two test prescribed in the aforesaid decision. In case of Oil India Limited 2002 (148) ELT 802 in para 8 following has been observed: "8. In view of the Board's clarification dated 17-11-81 the Revenue cannot take up a contention that condensate will not come under Item 68 of the old Tariff. The above clarification further makes it clear that condensate is a petroleum in natural state and is crude oil. It is to be classified as crude min....
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....he matter has been examined in the light of CETA 2006-2007, Laboratory findings, contentions submitted by the party and the standard literature available in the laboratory. It is conduced from the above that sample under reference satisfy the condition/ paramotors laid down for the products falling in category of SH 27101119 of Chapter-27 of CETA. The point wise clarification to justify the same is as under. Document 2 67 1. 2. 3. : The sample is mineral hydrocarbon oil in Laboratory findings (fall in Chapter-27). The sample distills 90% (by volume) at 165°C which is below the 210°C hence meeting the definition of "light oil preparations" coined in CET chapter sub-heading note of Chapter-27. The sample is included under the S.H. of motor spirit as it satisfy following three conditions namely (i) (ii) (iii) 4. Flash point below 25°C The sample in admixture with other substance i.e. Motor Gasoline is suitable for uso as a fuel in a spark ongino which has boon ostablishod by chocking the Research Octane Number of the sample with admixture It does not contain any anti knocking substances. The te....
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.... Special boiling point spirits (other than Benzene, Benzol, Toluene and Toluol) with nominal boiling point range 63-70°C 16% © Other special boiling point spirits (other 16% than Benzene, Benzol, Toluene and Toluol) 2710.14 -- Naphtha 2710.15 -- Natural Gasoline Liquid 16% 16% 2710.19 -- Other 16% - Other: 2710.91 -- Superior kerosene oil 16% 2710.92 -- Aviation turbine fuel 16% 2710.93 S - High Speed diesel oil 16% 2710.94 - Light diesel oil 16% 2710.95 - Lubricating oil 2710.99 - Other plus Rs. 1.50 per litre 16% 16% Document 4 12710 Petroleum oils and oils obtained from bituminous minerals, other than crude; preparations not elsewhere specified or included, containing by weight 70% or more of petroleum oils or of oils obtained from bituminous minerals, these oils being the basic constituents of the preparations; waste oils - Petroleum oils and oils obtained from bituminous minerals (other than crude) and preparations not elsewhere specified or included, containing by weight 70% or more of petroleum oils or of oils obtained from bituminous minerals,....