2000(05)LCX0067

IN THE CEGAT, EASTERN BENCH, KOLKATA

Smt. Archana Wadhwa, Member (J) and Dr. S.N. Busi, Member (T)

SAIL

Versus

COLLECTOR OF C. EX., BHUBANESWAR

Order No. A-725-CAL/2000, dated 26-5-2000 in Appeal No. E-936/93

CASE CITED

Commissioner v. Cotspun Ltd. — 1999(09)LCX0297 Eq 1999 (113) ELT 0353 (S.C.) — Relied on........................ [Para 3]

Advocated By :   Shri B.J. Mookherjee, Advocate, for the Appellant.

Shri R.K. Roy, JDR, for the Respondent.

[Order per : Archana Wadhwa, Member (J)]. - After hearing both the sides duly represented by Shri B.J. Mookherjee, ld. Adv. and Shri R.K. Roy, ld. JDR, we feel that the appeal can be disposed of on the short point of limitation. Show cause notice in the present case was issued on 5-9-1990 for the period 1-3-1988 to 20-9-1989 raising demand of duty of Rs. 10,71,429/- in respect of plate shearings. Whereas the appellants have claimed the classification of the plate shearings as waste and scrap classifiable under heading 7204.90, the Revenue's contention is that the same are classifiable under heading 7211.21 as flat roll products. It is undisputed on record that the classification lists filed by the appellants w.e.f. 1-3-1988 and 1-3-1989 were duly approved by the Asstt. Commissioner. RT-12 returns filed for the said period were also assessed and the notice, apart from alleging that the appellants have suppressed the material facts from the department has given no evidence or instance as to how the suppression has taken place.

2. The Commissioner in his impugned order admits the fact of approval of the classification lists, but records that the appellants have intentionally declared plate shearings under the broad head waste and scrap and have tried to suppress the fact of use of the product to the department and also the fact that the shearings in question is of re-rolable nature. He submits that by not disclosing the complete facts to the department, the appellants have proved their intention to evade payment of duty. As such apart from confirming the demand of duty by invoking longer period of limitation he imposed personal penalty of Rs. 50,000/- also upon the appellants.

3. We find that in the classification lists plate shearings were mentioned by name and claimed as waste and scrap classifiable under heading 7204.90. The proper officer having jurisdiction over the appellants' factory had granted approval to such plate shearings. Such approval is deemed to have been granted by the proper officer after making necessary verification and after examining the product in question. Not only that the RT-12 return filed by the appellants were also duly assessed. It seems to be a case of mere change of opinion as regards the classification of the product, as rightly contended by the ld. Adv. Such modification in the classification list can only be prospective, as held by the Constitutional Bench of the Hon'ble Supreme Court in the case of CCE, Baroda v. Cotspun Ltd. - 1999 (113) ELT 353. As such by following the ratio of the said decision we set aside the demand as barred by limitation and allow the appeal on this limited ground without going into the merits of the case.

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Equivalent 2001 (136) ELT 0463 (Tri. - Kolkata)