2024 (4) TMI 184

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.... 2. Brief facts as could be gathered from the impugned order are that the appellant filed a Bill of Entry No. 743087 dated 8.1.2011 for clearance of 'Sweet Pearl P200', the country of origin was declared as France. The said goods were classified by the appellant under Tariff Item 29054900 claiming duty of 7.5% BCD + 10 CVD + 3% Educational Cess on CVD + 3% Education Cess on customs duty + 4% Special Additional Duty ad valorem. 3. Revenue appears to have not accepted the classification declared by the appellant based on an apparent input from intelligence, consequent to which, samples were drawn and forwarded to Expert Inspection Agency (EIA), Chennai for expert opinion. The said EIA vide its analysis report dated 22.3.2011 inter alia ....

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....anation, the original authority / adjudicating authority vide the impugned Order in Original proceeded to reject the classification declared by the appellant, reclassified the subject goods as proposed in the Show Cause Notice and also demanded the differential duty as proposed. It is against this order that the present appeal has been filed before this forum. 5. We have heard Shri Rohan Muralidharan, learned Advocate for the appellant and Shri Rudra Pratap Singh, learned Additional Commissioner for the Revenue, we have carefully perused the documents placed on record and also various decisions / orders relied upon during the course of arguments. The only issue that arises for our consideration is "whether the subject goods 'Sweet Pearl ....

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....ncer but the impugned order does not discuss the properties of a flavour enhancer and how the goods in question fit into the said description. 8. On the other hand, it is the case of the assessee that the subject goods are disaccharide alcohol produced from hydrogenation of maltose and is polyhydric alcohol/polyol. Maltitol is an organic compound used as a sugar substitute, the subject goods contain 99% Maltitol. This fact, according to the appellant, is supported by the report dated 26.7.2011 issued by CFL/CFTRI, Mysore. Chapter 29 specifically includes chemically defined organic compounds, whether or not containing impurities. Further, the chemical structure is C2H24O11, which is also the same for Maltitol syrup as well as the goods in....

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....e, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate. We cannot also, in our appellate capacity, direct or accord the latitude for invoking Section 11A of Central Excise Act, 1944 by obliteration of the proceedings leading to the impugned order. The mandate of the law pertaining to recovery of duties not paid or short-paid will have to be followed to the letter." The above decision of the Tribunal is based on the view taken by the Hon'ble Supreme Court in the case of Warner Hindustan Limited - (1999) 6 SCC 762 = 1999 (113) E.L.T. 24 (S.C.) wh....