ORDER
Gowri Shankar, Member (T)
1. The question for consideration in this appeal is the classification of the product known as Jaljira powder that the appellant manufactured and whether the extended period of limitation will be available to the department.
2. The counsel for the appellant bases his case on limitation and does not wish to go into the merits. He contends that the appellant in the classification list that it filed on 30-3-1994 had classified Jaljira powder as a spice in heading 09.03 of the Tariff claiming the exemption contained in Notification 2/94. The basis for the Notice dated 26-9-2000 demanding duty on clearances between July, 1999 to September, 1999 is only that the appellant claimed wrong classification and has thus wilfully misstated the facts. The appellant had classified the goods bona fide. There is nothing to show that it wilfully suppressed any fact and therefore the extended period will not apply.
3. The departmental representative emphasises that the classification list that the appellant filed indicated the product to be spices. We do not think that this is of any significance. Heading 09.03 of the Tariff is for spices and in classifying this commodity as well as 24 others that it manufactured, had indicated this generic entry. The goods were specifically described as Jaljira powder. The mere claiming of a classification in one heading cannot by itself amount to misdeclaration or suppression. [See JKS Fibreglass Ltd. v. CCE – 2001 (137) E.L.T. 436 and Fermentapharma Biotech Ltd. v. CCE – 2000 (123) E.L.T. 1173]. The extended period of limitation therefore was not available to the department.
4. The appeal is accordingly allowed and the impugned order set
aside.