ORDER
J.H. Joglekar, Member (T)
1. The applicants manufactured a product described as “Moyzen liquid” and cleared at Nil rate of duty during the period 1994-98 and also not the same goods manufactured from job workers situated in same division. The classification claimed for this product was under sub-heading 3303.00 as perfumes and toilet waters. A show cause notice was issued to the Job workers viz. M/s. Gran Heal Pharma Ltd. on 1-10-1996 seeking to classify the product under sub-heading 3304.00 as preparation for care of the skin. The classification list filed by the present applicants claiming classification under sub-heading 3303.00 however, continued to be approved. In the classification list, the composition of the product was shown to be consisting of liquid paraffin, isopropyl, myristate. The bottle described the content as moisturising liquid for dry skin-disorders. The sale literature described the product as “skin emollients” as also “skin humectant”. The product was claimed to prevent skin dehydration and to lubricate the skin.
2. On 20-4-1998, a show cause notice was issued alleging that during the period April 1993 to June, 1996, due to deliberate misrepresentation and by adaptation of wrong classification, duty had been evaded by the applicants. After hearing the applicants, the Commissioner confirmed the duty amounting to Rs. 20,46,176.38. He also imposed penalty of Rs. 4 lakhs. He confiscated the assessees land, building etc. but permitted redemption on payment of fine and ordered payment of interest on the delayed payment of duty. The assessee then filed an appeal and also the present application seeking waiver of pre-deposit of the duty and penalty and stay of recovery thereof during the appeal proceedings.
3. We have heard Shri M.H. Patil, Counsel for the applicants and Shri Deepak Kumar, SDR for the revenue.
4. We have examined the Tariff description of the contested goods and seen the sub notes in the HSN. On perusal of the Tariff heading, it appears that the presence of alcohol whether in concentrated form or in diluted form would be the deciding factor for classification under Heading 3303.00. The description as skin emolients and skin humectant on the sale literature suggest the use of the contested product as preparation for care of the skin and not as toilet waters and perfumes.
5. Shri Patil argued on point of limitation. It is his claim that the same product as being made by their job worker was under scrutiny for classification by the Department in 1996. The show cause notice refers to the same product, as was being made by the job worker on behalf of the present applicants. Both the units are in the same division. It is his submission that since this fact was in the knowledge of the department, the show cause notice issued after la/2 year could not allege suppression. It is also his claim that in the classification list the principal ingredients were narrated and the process of manufacture was also in the knowledge of the department. The classification list was approved finally from time to time and the RT 12 returns were assessed. The department having examined the declaration and having approved the classification could not allege suppression.
6. Shri Deepak Kumar submits that with effect from March 1995, the need for approval of classification by the Asstt. Commissioner was done away with by virtue of amendment of Rule 173B. Shri Patil refers to the departmental instructions reproduced in 1995 (77) E.L.T. T41 in which Range Officers are required to conduct such verifications as were earlier being done for scrutinising and approving the classification list. Therefore, it would appear that the burden cast upon the department to verify either classification list or declaration would continue in spite of the amendment. We have also seen the case laws cited by the ld. Counsel which states that once the classification list has been approved after due scrutiny, extended period could not be invoked. We have also seen the judgment of the Tribunal reported in 1999 (32) RLT 62 in which it has been held that where the first show cause notice is issued for normal period, in the notice at a later stage, extended period could not be invoked.
7. On the point of limitation, a strong prima facie case having been made by the applicants, we grant the prayer of waiver of pre-deposit of the duty confirmed and penalty imposed and stay their recovery during the appeal proceedings.