CCE Vs. QUINN INDIA LTD.

JUDGEMENT

(1.) IN this Revenue appeal against the order in Original No. 191/91 dated 26.12.1991, the Collector of Central Excise, has been directed by the Central Board of Excise and Customs to come in appeal before us. The said direction was issued under Section 35E of the CE Act, 1944 on Review of the said order in original by the Central Board and consequently vide No. 250 R/92 dated 28.12.1992 passed by the Member Central Board, the impugned order was sought to be appealed against on the issue of classification of the product Penetrator 4893. While the Revenue claims classification under 3801.90, the order impugned had classified it under chapter 34 as organic surface active agent preparation.

(2.) HEARD Shri S. Sankaravadivelu, learned DR who reiterates the grounds of appeal and submits that the respondents have chosen to rely upon the subsequent technical opinion of the Chief Chemist's CRCL, New Delhi. The said Chief Chemist opinion on classification is not binding in law as laboratory can only give composition etc., thereon and not any opinion on tariff classification.

(3.) SHRI Chidananda Rao, learned Consultant for the respondents makes a preliminary objection with respect to the review order of the Board noted above. He submits that the Revenue appeal is both on merits as well as on ground of limitation. The order had been passed in favour of the respondents wherein it was found that the demand was hit by time bar as no suppression was involved. The learned Consultant submits that in the review order authorising the learned Commissioner to file appeals before us, the question of limitation has not been raised as a ground of appeal. This question though agitated in the said appeal was raised by subsequent communication vide corrigendum to the said order No. 250/R/92 dated 28.12.1992 noted above. This corrigendum reads as follows: F. No. 199/307/92 -Jud Cell (BMB) Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs New Delhi, dated the 11th Feb., 1993. CORRIGENDUM Corrigendum to Order No. 250 -R/92 dated 28.12.1992 issued by the Member, Central Board of Excise & Customs, New Delhi vide even No. dated 11.1.1993 in the matter of M/s. Quinn India Limited Pataneheru. ... Following para which through oversight was omitted as the last para on page 8 of the aforesaid Order No. 250 -R/92 dated 28.12.1992 may through this corrigendum be deemed to have been incorporated as the last para on page 8: Collector in his Order -in -Original held that there was no evidence of any suppression or misdeclaration with intent to evade duty on the part of the assessee. The above findings of the Collector are not legally correct and proper, as the assessee has suppressed the fact that the said chemical acts as an anchoring agent Sd/ - 10.2.1993 (B.C. Rastogi) Member Central Board of Excise and Customs The learned Consultant submits that since this represents additional ground raised by the Revenue as late as 11.2.1993 whereas the order impugned was passed on 26.12.1991, therefore, the said raising of additional ground by this so -called corrigendum in fact constitutes raising a fresh ground and since this ground has been raised after expiry of one year from the date of passing of the said order -in -original impugned, therefore is hit by the limitation under Section 35E of the CE Act, 1944. He further submits that on limitation the Collector's findings are very clear and that since their classification list claiming exemption classification under chapter 34 under Notification 101/66 was approved by the Assistant Commissioner concerned after due verification, therefore in view of the well settled case laws on this issue, there can be no ground to invoke suppression and the extended period and hence the learned Consultant submits that by both the test reports of the Chemical Examiner as well as that of the Chief Chemist of CRCL, New Delhi which is the highest Revenue laboratory and technical authority under the Board it has been clearly demonstrated that the product was composed of Organic surface active agent along with certain diluent which had no principal activity thereof. It is also seen that surface tension exceeded 20 dynes and therefore, the product was clearly within the ambit of chapter 34 and hence exempt under the said Notification. This issue has been examined in detail by the Collector in the order in original impugned. He submits that the Revenue wants the classification under chapter 38 merely because at the time of its use certain other items like dyes, resins are added to it before it is used by the leather industry. He submits that this itself makes it clear that the product manufactured by them by itself is of no use to the leather industry unless other items are added to it and it merely acts as a wetting out agent. He submits that classification if any has to be done on the product in the form in which it is removed from the factory premises and not as to how it is used after clearance.