2019 (4) TMI 172

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....on of which has been claimed under CSH 2709.0000 of CETA 1985. Revenue alleging the classification under CSH 27101950 attracting duty @ 16%, issued demand notice on 19.03.2008 for recovery of duty on the said GC-005 amounting to Rs. 54,30,614/- with interest and penalty. On adjudication, the demand was confirmed with interest. Hence, the present Appeal. 3. The learned Advocate, at the outset, has submitted that the Appellants are engaged in the production and clearance of various petroleum products including the product GC-005 which remains at the bottom of the crude after distillation/dehydration. The said dehydrated "Crude Oil" is known as GC 005, which is nothing but crude oil itself and hence it was appropriately classified by the Appe....

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....as in the SCN against the claimed classification of 2709.0000, it proposed classification under CSH 27101050, whereas the Adjudicating Commissioner directed classification under CSH 27101900. It is his argument that on this count only, the adjudication order is liable to be set aside. In support, he has referred to following judgments:- i) Swami Containers Pvt. Ltd Vs CCE Pune-I 2001 (134) ELT 169 (Tri) upheld in ii) Swami Containers Pvt. Ltd Vs CCE Pune-I 2002 (145) ELT A 245 iii) J.D. Jones & Co. Pvt. Ltd Vs CCE Calcutta-II 2003 (154) ELT 1-6 (Tri) iv) Craft Interiors Ltd Vs CCE Bangalore 2005 (187) ELT 113 (Tri) v) Thermoflex Cable Industries Vs CCE Mumbai-III 2006 (196) ELT 124 (Tri) vi) Vaspar Concepts (P) Ltd Vs CCE Bangalore 20....

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....arned Advocate has submitted that if the classification under CSH 2709000 is not accepted; and it is classified under CH 27101990 of CETA 1985, and chargeable to duty, then they are eligible to cum duty benefit of the crude cleared at Nil rate of duty during the period March 2007 to September 2007. 7. The learned A.R. for the Revenue reiterates the findings of the learned Commissioner. 8. Heard both sides and perused the records. The short point involved in the present appeal for determination is whether the product CG 005 cleared by the Appellant during the relevant period is classifiable under CSH 27090000 attracting Nil rate of duty or classification under CSH 27101990 of CETA 1985 attracting duty at 16%. 9. The Appellants purchased t....

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....CRCL, New Delhi in its report dt.28.10.2009, opined that it is "topped crude" and covered under CH 2710 of CETA 85; the re-testing of sample by Director CRCL New Delhi indicated the sample is in the form of dark brown coloured pasty mass; it is composed of mineral hydrocarbon oil having flash point more than 66oC; density at 15oC is 0.8393 gm/ml and ash content is 0.07% by weight. On a combined reading of the test reports, the Adjudicating Commissioner came to the conclusion that the product GC-005 resembles with products under CH 2710 inasmuch as it is petroleum oil and bitumen mineral other than crude containing petroleum oil more than 70% by weight and having flash point more than 66oC; density at 15oC is 0.8393 gm/ml and ash content is ....

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....rned Commissioner cannot be sustained. The classification under a different sub-heading to the one proposed in the Show Cause Notice is not permissible in view of the ratio laid down by the Hon'ble Supreme Court in the case of Precision Rubber Industries (P) Ltd. Vs. CCE, Mumbai 2016 (334) ELT 577(SC). Their Lordships observed as: "8. The only contention urged by the appellant is that since the show cause notices were issued for classification of the goods under Chapter Heading 4016.99, the Tribunal could not have directed the classification of the goods under Chapter Heading 8448.00. This was not even the case of the Revenue and it came up for the first time before the Tribunal. 9. Learned counsel for the appellant has referred to Warne....

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....eading 8448.00 without issuing a fresh show cause notice to the assessee in this regard. 12. In these circumstances, and following the decisions of this Court, we would have ordinarily permitted the Revenue to issue a fresh show cause notice to the assessee seeking to classify the goods under Chapter Heading 8448.00. However, due to the passage of time, we are of the opinion that it would not be advisable (or permissible under the provisions of the Central Excise Tariff Act) to permit the Revenue to reopen the entire proceedings and classify the goods under Chapter Heading 8448.00. 13. Accordingly, while setting aside the impugned order passed by the Tribunal, we remand the matter to the Tribunal to take a decision on whether the goods ma....