2023 (9) TMI 62

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....ed, are engaged in the manufacture of Zirconium Oxide and Zirconium Oxychloride; the respondents applied for amendment of the classification of the impugned products from CETSH 28.25 to 26.15 vide letter dated 28.03.2003; the respondents filed a declaration dated 12.03.2004 showing their intent to avail the benefit of Notification No.50/2003 dated 10.06.2003; the respondents continued to classify their products under CETSH 26.15; Revenue challenged the classification and an OIO dated 30.06.2006 decided the classification under CETSH 28.25; on an appeal filed by the respondents, Commissioner (Appeals) allowed the appeal and held that the impugned product merits classification under CETSH 26.15; on an appeal filed by the Department, CESTAT vi....

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....e price would arise in computing the assessable value of excisable goods; one cannot go by the general indication that the price would always means cum-duty price, particularly so, when the goods were cleared on the basis of an exemption notification. 4. Learned Counsel for the respondents submits that they have submitted the declaration before the Department on 12.03.2004 showing their intent to avail the benefit of exemption Notification No.50/2003 and classifying the impugned products under CETSH 26.15; thereafter, there was a continuous correspondence between the respondents and the appellants regarding the classification of goods; the Department was in the knowledge of the classification adopted by the respondents; therefore, no all....

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....tion was made public by the Ministry of Commerce in the month of January 2003, actual notification, exempting the goods by the Finance Ministry, was issued on 10.06.2003; it cannot be inferred that the appellants have changed the classification with a view to avail undue benefit; even if we accept such a proposition, the intent to change the classification was informed to the department in March 2003 itself; the Department was free to cause necessary verification and to change the classification; the argument that verification took long time because of the procedures involved like testing by the agencies, cannot be a reason to allege suppression of fact; there should be a positive act of suppression, wilful mis-statement with an intent to e....

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....sed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." 8. Regarding the cum-duty price, we find that the Department relies upon the decision in the case of Amrit Agros (supra). The learned Counsel for the respondents, however, submits that the decision in the above case is rendered in the context of un-amended Section 4 and therefore, the same is not applicable. We find that the Hon'ble Apex Court in the case of Amrit Agros (supra) held as follows: "15. In our view, in the facts and circumstances of the case the judgment of this Court in the case of Bata India Ltd. (supra) on prin....