ORDER
Archana Wadhwa, Member (J)
1. The prayer in the application is for dispensing with the precondition of deposit of duty of Rs. 74,39,895/- and penalties of Rs. 10 lakhs imposed upon the second applicants, who is a Managing partner of the first appellant company, confirmed against the appellant for the period 1.10.1997 to 31.10.2000 along with imposition of personal penalty of identical amount under the provisions of Section 11AC read with Rule 173Q (1) of the Central Excise Rules. The show cause notice has been issued on 1.5.2001. The above demand has been confirmed on the ground that the appellant’s product Domex cleaner is properly classifiable under heading 3402.90 as cleaning preparations as against the appellants claim for classification under heading 3808.90 as a Disinfectant preparations. Shri C.S. Lodha learned Advocate, appeared for the appellant, assails the impugned order on merits as also on the point of limitation. As regards merits, he submits that the issue is covered by earlier decision of the Tribunal in the case of 1996 (106) ELT 41 (Tribunal). As regards limitation the submits that the major part of the demand (except for a period of six months), is barred by limitation inasmuch as the show cause notice was issued on 1.5.2001. He draws our attention to the various classification list filed dt.23.7.2001 onwards, wherein the detailed information of the product with the list of raw materials, list of packing raw materials, manufacturing processes and the labels of the products were filed with the Revenue claiming classification under heading 3808.90 and stands approved by the proper jurisdictional Central Excise officer.
2. After hearing the Ld. SDR and after going through the impugned order of the Commissioner we find that the Commissioner has rejected the appellant’s contention on the issue of time bar on the sole observation that the appellants failed to file correct declaration of the above said products under heading 3402.90 of Central Excise Tariff Act, 1944 and as such there has been a suppression of facts, justifying Revenue’s invoking the longer period of limitation. As already observed the appellants had given the detailed description of the product along with the requisite information on the classification list itself. It was the duty of the proper officer to satisfy himself about the correct classification list before granting approval to the same. The present case of the revenue is based upon the drawing of sample and the test result of the same. If the proper officer was not satisfied about the declaration having been made by the appellant, it was open to the Revenue to withdraw the sample at that point and test it before granting approval. Having regard to the fact that it did not do so at that point of time, the Revenue cannot contend that there was any suppression on behalf of the appellant. It is well settled law that claiming of classification under any heading other than the one, which the Revenue feels as correct heading, but does not amount to suppression of fact or misstatement. In this view we are of the opinion that the appellant have a good prima facie case on limitation. Accordingly we allow both stay petition unconditionally and fix the main appeal itself on 19.2.2004.