TaxTMI 
TaxTMI 
2003 (10) TMI 123
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....Rs. 1 crore as raised in the show cause notices for the total period March 2000 to August, 2002. It also imposed a penalty of equal amount on the assessee under Section 11AC of the Central Excise Act. The learned Commissioner passed the order after holding that the products namely 'special solvent' and 'other residue', on which the above demand of SED was raised, were correctly classifiable under sub-heading 2710.13 of the Schedule to the Central Excise Tariff Act, 1985 as claimed in the show cause notices. 2. Examined the records and heard both the sides. The appellants are engaged in the manufacture of 'special solvent' and 'other residue' using naphtha as raw material. They classified the products under sub-headings 2710.90 and 2713.3....
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....ng to the text of Tariff Heading 27.10, the learned Counsel submitted that it was not only the flash point but also the use of the product by itself or in admixture with any other substance that was relevant for deciding on the question whether the product was classifiable under sub-heading 2710.13 or 2710.90. But the adjudicating authority did not render any clear finding on this aspect. It held that the goods may or may not be suitable for use as fuel by itself in spark ignition engines. It was, however, also held that the admixture of the products with other substance may be suitable for use in spark ignition engines. This finding recorded by the Commissioner was not supported by any evidence whatsoever. In this context, the Counsel reli....
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....orem and no special excise duty (SED). On the other hand, the Revenue wants both the items to be classified under sub-heading 2710.13 which attracts SED also. Heading 27.10 is extracted below :- "27.10 Petroleum oils and oils obtained from bituminous Minerals, other than crude; Preparations not else­where specified or included, containing by weight 70% or more of petroleum oils or of oils obtained from bituminous minerals, these oils being the basic constituents of the preparations - Motor spirit, that is to say, any hydrocarbon oil (excluding crude mineral oil) which has its flash point below 25ºC, and which either by itself or in admixture with any other substance, is suitable for use as fuel in spark ignition engines....
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....ontext, we must mention the decision cited by the Counsel. In that case, the question considered by the Tribunal was whether certain fractions from naphtha were to be classified as special boiling point spirit under sub-heading 2710.13. The flash points of the liquids were below 25°C. The Tribunal held that, apart from fulfilling this criterion, the goods should also meet the requirement of being suitable for use as fuel in spark ignition engine for the purpose of being classified under sub-heading 2710.13. There was no evidence to show that the naphtha fractions were suitable for use as fuel in spark ignition engine. The instant case is, factually, no different as there is no evidence on record to show that the goods under consideratio....