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2019 (9) TMI 1523

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....tral Excise, Kolkata, for the period from 11.04.2005 to 09.02.2008 and 01.04.2008 to 28.02.2013. A personal penalty has also been imposed on Sri Bindhyachal Singh, Accountant of the appellant company, who has also preferred appeal before us. Since the issues involved in all the appeals are common, the same are disposed of by this common order. 2. The appellant is inter-alia engaged in the manufacture of solvent oil, also referred as organic composite solvent oil ('OCS') on which central excise duty has been paid by classifying them under tariff sub heading 3814 00 10. In the first Show Cause Notice (SCN) dated 31.03.2009, the classification was proposed to be made under tariff sub heading 2710 11 19 as 'others' appearing under the main hea....

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....e Celsius, whereas the Chemical Examiner in his report stated that the range of distillation of product is 35 degree to 58 degree Celsius which is much below 210 degree Celsius. Hence the classification under chapter 271011 is automatically ruled out. The Ld Advocate also submitted that classification has been settled by the Tribunal in the case of Kuchchal Chemicals Ltd. vs, CCE, Lucknow 2013 (288) ELT 585 and further the issue is finally settled by the Hon'ble Apex Court in Commissioner, Central Excise, Noida vs. Jagdamba Petroleum Pvt. Ltd 2007 (212) ELT A112 (S.C.). He also disputed the case on time bar and imposition of penalty in absence of fraud or suppression and also submitted that personal penalty could not be imposed on the seco....

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.... 6. Ld. Counsel for the appellants has submitted that the impugned orders classifying the disputed goods as "Motor Spirit" has been passed on assumption and presumption ignoring the report of the Chemical Examiner, Central Revenue Control Laboratory (CRCL), New Delhi and the definition of 'motor spirit' in chapter Note 27 of CETA, 1985 which provides that any substance having following specification shall fall under category of 'motor spirit' : 1. It should be composed of hydrocarbon oil 2. Its flash point should be below 25°C 3. It should be, either by itself or in admixture with any other substance, suitable for use as fuel in spark ignition engines. 7. Ld. counsel pleaded that admittedly, the samples of disputed goods were s....

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....ed that the Commissioner (Adjudication) has rightly classified the disputed goods cleared by the appellants as "Motor Spirit" classifiable under chapter sub-heading 2710 11 13 and as such, the assessee was liable to pay differential excise duty. Ld. A.R. pleaded, undisputedly main component of the disputed product is Naphtha, which can be used as fuel in spark ignition engine, as such the product obtained by fractional distillation of Naphtha along with special boiling point spirit and pentane basically is pure form of Naphtha as such, the Commissioner was right in concluding that final product obtained from fractional distillation of the above referred component could be used as fuel in spark ignition engine and as such, it was classifiabl....

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....ignition engine on the plea that it was not possible by the laboratory to determine octane number and give finding regarding suitability to be used as fuel in spark ignition engine. Thus it is clear that the chemical analysis report does not establish that the disputed goods fulfil the requirement of definition of 'motor spirit' in the Chapter Heading 27. Despite that the adjudicating authority instead of sending the fresh sample to the laboratory having the requisite facility to verify whether or not the disputed goods either by itself or in admixture with any other substance was suitable for use as fuel in spark ignition engine proceeded to introduce his own theory to categorise the disputed goods as motor spirit. This approach by the adj....

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....assifying the product under Chapter 27 sub-heading 2710.13. 12. The Department challenged the order of the Tribunal in the Apex Court and the Supreme Court dismissed the appeal filed against the order of the Tribunal observing thus : "In view of the fact that admittedly the report of the Chemical Examiner is inconclusive, the Revenue has not been able to discharge its onus of proof that the classification of the excisable article by the assessee was wrong", (reference be made to Commissioner, Central Excise, Noida v. Jagdamda Petroleum P. Ltd. - 2004 (163) E.L.T. 88 (Tri.-Delhi)." 13. In view of discussions above, we are unable to sustain the impugned orders confirming the demand of differential duty demand which is not supported by t....