TaxTMI 
TaxTMI 
2024 (8) TMI 259
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....ndent under 82349090 and consequently liable to payment of excise duty. 2.1. As regard the demand set aside on the ground of time bar, he submits that since the respondent have not declared their goods and classification thereof correctly to the department, there is clear suppression of fact. Hence, the demand for the extended period is sustainable. 3. Shri Paresh Sheth, learned counsel appearing on behalf of the respondent submits that undisputedly gears are manufactured for Rotary Tiller which is an agricultural equipment. The gear is used solely and principally for Rotary Tiller which is an agricultural equipment. The gear is correctly classified under heading no 82349090. On this basis the demand of excise duty classifying the gear under 84344000 is not correct and legal. 3.1 He further submits that the demand for the period 01.04.2011 to 31.03.2013 was raised by show cause notice dated 02.05.2016. In the facts of the present case where the issue involved is of classification , no suppression of fact can be alleged , therefore, the entire demand is time bar. He further submits that the respondent have recorded all the transactions of the impugned case in their various ....
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....e Central Excise Tariff. As such, I find that no malafides can be attributed to their conduct involving any suppression of facts to evade payment of duty. Therefore, the ratio of the decision cited in the case of M/s Dresser Rand(India) Pvt. Ltd. Vs Commissioner of C.Ex. Ahmedabad 2012(285) ELT 438(Tri. Ahmd.) is squarely applicable to this case. Therefore I hold that the entire demand raised beyond the normal limitation period is not sustainable and is liable to be dropped in-toto. Also, since the allegation of suppression is not maintainable, and since there is no case of confiscation of the goods, the question of upholding the penalty imposed under Rule 25(1) of Central Excise Rules, 2002 read with Section 11AC(1)(b) of Central Excise Act, 1944 does not survive and accordingly recovery of interest at appropriate rates under Section 11AA of Central Excise Act, 1944 also does not survive." 4.1 From the above finding it is observed that Learned Commissioner (Appeals) has cited the fact that other manufacturers of the identical goods were also classifying the gears under CETH 84329090 as per para 23.11 of Order-In-Original. Therefore, this is one of the reason that the appellant ....
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....ment in the show cause notice in respect of Hot Rolled Nickel Chromium Austenitic Type was proposed to be classified under 7220 1090 and Cold Rolled Nickel Chromium Austenitic Type was proposed to be classified under 7220 9090 whereas the adjudicating authority decided the classification of both the product under 7220 1229 and 7220 2029 respectively. It is a settled legal position that if the goods cannot be classified under a classification which has been proposed in the show cause notice, then even if its correct classification is different than the classification claimed by the assessee, the entire show cause notice fails on this point itself. In this regard, we take support from following judgments : Sedna Impex India Pvt Ltd. 2017 (347) ELT 317 (Tri. Chennai) Maruti Fabrics Impex 2016 (343 ELT 963 (Tri.) Ravi Dyeware Co. Ltd. 2014 (301) ELT 421 (Tri.) Samar Polytex Ltd. 2009 (238) ELT 621 (Tri. Del.) In view of the above judgments, it is settled that the department cannot travel beyond the proposals made in the show cause notice. In the present case the impugned order travelled completely beyond the classification proposed in the sh....
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....ls) vide order dated 17.02.2014, set aside the Order-in-Original and classified the products under CTH 30039011 and thereafter till the final order dated 10.01.2018 was passed by the Tribunal that the product in question is to be classified as food supplements, the appellant was under a bonafide belief and filed the bills of entry, accordingly in terms of the order of the Commissioner (Appeals) dated 16.08.2012 and thereafter the order dated 17.02.2014. In view of the proceedings which was pending since 2012 and the department itself had preferred an appeal, it cannot be said that the department was not aware of the classification of the products as declared in the instant bills of entry by the appellant and therefore no fault can be found on the part of the appellant as 9 out of the 10 bills of entries were filed before the final order was passed by the Tribunal on 10.01.2018 and the Order-in-Appeal by the Commissioner (Appeals) was holding the field. In this regard we would like to refer to the observations made by this Tribunal in an appeal filed by the Customs Broker of the appellant against the present impugned order as under: "11. In the order, the Principal Commissi....
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....e mis-statement on behalf of the appellant. For these reasons, the revenue was not justified in invoking the extended period of limitation to fasten the liability on the appellant when the revenue is aware of the litigation with the appellant on the issue of classification of the very same products and taking steps to challenge the same before the higher forum. Thus it cannot be said that the appellant has in any manner, suppressed or mis-stated the facts wilfully to evade the payment of duty. 12. The law on invocation of extended period of limitation is well settled. Mere omission or merely classifying the goods/services under incorrect head does not amount to fraud or collusion or wilful statement or suppression of facts and therefore the extended period of limitation is not invocable. Reliance is placed on the decision of the Tribunal in Incredible Unique Buildcon Private Ltd. 2022 (65) GSTL 377. "17. We are unable to find any proof of show cause notice or from the impugned order. intent to evade either from the Mere omission or merely classifying its services under an incorrect head does not amount to fraud or collusion or wilful misstatement or suppression of....
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....ompany of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed 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." 13.1 Without multiplying too many decisions on the principle justifying or rejecting the invocation of the extended period of limitation, we would just refer to the citations: 2004 (166) ELT 151 (SC) - Hyderabad Polymers (P) Ltd., vs. Commissioner of Central Excise, Hyderabad 2006 (197) ELT 465 (SC) - Nizam Sugar Factory vs. Collector of Central Excise, Andhra Pradesh 2004 (164) ELT 236 (SC) - ECE Industries Ltd., vs. Commissioner of Central Excise, New Delhi. 2003 (153) ELT 14 (SC) P&B Pharmaceuticals (P) Ltd., vs. Collector of Central Excise 2015 (324) ELT 8 (SC) - Caprihans India L....
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....e Department was dismissed as it was rightly argued by the appellant's Counsel. It is not confined to slabs but also the marble tiles. Because in Para 7 of the order, it was clearly held that the original identity continues despite the several processes undergone. In the trade circles, marble slabs or the marble tiles that are manufactured after cutting the edges, trimming, polishing and other processes continue to be known as marble. Unless it is proved that by virtue of the sawing process, a different or distinct commodity comes into existence, the process cannot be equated to manufacture. Further, in Para 8 of the said order, it was observed that the manufacture of an article known as marble could be said to be complete only after all or most of these processes are undergone to result in a distinctly different commodity. The issue was decided in favour of the assessee mainly on the ground that Department has not established with any material evidence to show that marble slabs could be considered as a different and distinct commercial commodity. It the instant case also the Deptt. has not established with any evidence how it is understood in commercial parlance to show that the i....
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....on No. 299/1978 dated 6-4-1978 reported in 1979 (4) E.L.T. (J 105) (G.O.I.) wherein the Government of India stated that one of the determining factor for exemption will be the certificate issued by the District Industrial Officer. In this view, we find that the appellants also had not kept back any information from the notice of the Department with respect to the machinery installed as they had maintained all their records. In view of the above facts, we are of the view that it cannot be said that there was any wilful suppression on the part of the appellant and no mala fide can be attributed to the appellants in the facts and circumstances of this case which we have already narrated above. 8. In the premises, we are of the view that since the demand is not contested on merits for a period within six months, we confirm the duty with respect to the period which is within a period of six months from the date of receipt of Show Cause Notice. But the duty beyond the period of six months from the date of receipt of Show Cause Notice is barred by limitation and the demand of the same in terms of the impugned order is hereby set aside. In the facts and circumstances, we have alre....