GAIL (INDIA) LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(2.) VIDE its impugned order, Commissioner has confirmed demand of duty of Rs. 1,62,95,955/ - along with imposition of penalty of identical amount. The said demand stands confirmed for the period March, 2000 to February, 2002 by issuing a show cause notice dated 10 -8 -2004. The demand is in respect of one of their product 'pentane' which was being cleared by the appellant under sub -heading 2711.19 of the Central Excise Tariff as other 'petroleum gases and other gaseous hydrocarbons' and paying Central Excise duty @ 8% ad valorem after availing of the benefit of SI. No. 24 of Notification No. 6/2000 -C.E., dated 1 -3 -2000 and SI. No. 34 of Notification No. 3/2001 -C.E., dated 1 -3 -2001. The Revenue was of the view that the product was correctly classifiable under sub -heading 2710.90 of the Central Excise Tariff as other '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'. Goods classifiable under this heading were chargeable to duty @ 16% ad valorem during March, 1999 to 11 -1 -2002 and @ 20% ad valorem during 12 -1 -2002 to 28 -2 -2002. Accordingly, proceedings were initiated against them resulting in confirmation of demand of duty. Apart from contesting the issue on merits, learned advocate appearing for the appellant has submitted that the demand is fully barred by limitation inasmuch as the appellant was filing due classification claiming classification of 'pentane' under Heading 2711.19 with the benefit of exemption vide Notification No. 6/2000 -C.E., dated 1 -3 -2000 and 3/2000, dated 1 -3 -2000. Even in respect of their Vijaypur unit 'pentane' was being classified under Heading 2771.19 and the classification declaration filed by their Vijaypur unit was duly approved by the department. Learned advocate also draws our attention to various decisions of the Tribunal laying down that wherever the classification has been filed by the appellant, no allegation of suppression or mis -statement can be made there against. Learned advocate has specifically drawn our attention to an Order -in -Original No. 52/UDR -II/MP/2004, dated 29 -3 -2005 passed by the Commissioner of Central Excise, Baroda wherein while classifying the product under Heading 2771 10 90, the demand stand dropped by the Adjudicating Authority, in their own case, on the point of limitation. He submits that the said order stand duly accepted by the Revenue and no appeal stand filed against that. He draws our attention to another order passed by the Commissioner in the case of M/s. GAIL, Vijaypur vide its Order No. 80 -88/Commr/CEX/IND/2005, dated 11 -11 -2005 wherein the show cause notice proposing change in classification were dropped by him by observing that the correct classification of 'pentane' is under Heading 2711.19. As such, he pleads for allowing the appeal on point of limitation.

(3.) AFTER appreciating the submissions made by both sides, we find that present appeal can be disposed of on the point of limitation itself. Demand for the period stand raised by the show cause notice dated 10 -8 -2004, by invoking the longer period of limitation. Though it is not disputed that appellant had been filing the declaration claiming the classification of goods under sub -heading 2711.19 along with the benefit of exemption notification, still the longer period stand invoked against them on the ground that 'pentane' was not properly classified under 2710.90 and as such, there was misdeclaration on the part of the assessee.

(4.) WE do not agree with the above reasoning of the Revenue. The 'pentane' disputed product, in question is being classifiable by other units of M/s. GAIL India under sub -heading 2711.19 only. They have also filed the same classification. If the Revenue was not in agreement with the said declaration of such classification, it was open to the officers to raise the objection to the same and to initiate proceeding for change in classification. We find that the issue of limitation stands discussed in detail, by the Commissioner of Central Excise and Customs, Baroda while deciding the classification of the same product in the case of M/s. GAIL, LPG Recovery Project, Gandhar, Bharuch. For better appreciation, we reproduce the relevant part of the said order.