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Commissioner of Central Excise, Chennai-IV V/S Harts Cocoa Products Pvt. Ltd.

    Appeal No. E/459/2011 (Arising out of Order-in-Appeal No. 16/2011 (M-IV) dt. 3.6.2011 passed by Commissioner of Central Excise (Appeals), Chennai) and Final Order No. 41978/2018

    Decided On, 06 July 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, MEMBER

    For Petitioner: K.P. Muralidharan, AC (AR)

Judgment Text

1. None is present for respondent. From the records, it is noticed that the respondent was not present for the early hearings of 14.03.2018, 05.06.2018 and 21.06.2018. In the last mentioned hearing, the matter was adjourned to 06.07.2018 as a last chance for respondent and a notice was issued for causing appearance. However, despite of the same, today when the matter was called, respondent is not present. Hence without any further adjournment it is found proper to take up the appeal for hearing and decide the matter.

2. On the other hand, Ld. A.R. Shri K.P. Muralidharan relies upon the grounds of appeal. He further submits that NIVARAN-90 is a brand name of M/s. Velvette International Pharma Products and that M/s. Harts Cocoa Products Pvt. Ltd., the respondent herein is using the brand name. He also takes us to para 5.2 of the order of original authority dt. 24.03.2009 wherein also a reference is made to Velvette International Pharma Products Ltd. Ld. A.R. submits that the very same issue concerning classification of "Nivaran-90 Herbal Cough Syrup" had come up in appeal before this Tribunal in the case of Velvette International Pharma Products and Nivaran Herbal Pvt. Ltd. where vide Final order dt. 04.05.2010 reported in 2010-TIOL-1088-CESTAT-MAD, this Tribunal had upheld the stand of the department that impugned goods are not entitled for exemption as Ayurvedic goods. However, the Commissioner (Appeals) in the impugned order has held otherwise that the impugned goods are classifiable as Ayurvedic medicament under CETH 3003.30 and therefore eligible for exemption under notification No. 32/89-CE and 9/93-CE. The Commissioner (Appeals) has also set aside the order of original authority on the ground that show cause notice issued invoking extended period is not maintainable.

3. We find that Ld. A.R. is correct in his assertion that the very same issue has been decided by the Tribunal in the Velvette International decision relied upon by him (supra). We find that the original authority in para 7.1 of the adjudication order dt. 24.03.2009 has also referred to adjudication order of the Commissioner of Central Excise in Velvette International Pharma Products Ltd. vide OIO No. 22/2000 dt. 31.12.2000 which was the very impugned order appealed against in the Tribunal decision referred to supra. This being so, we do not find any reason why the classification as affirmed by the earlier order of Tribunal should not be reiterated in this case also. We also note that para 4.0 of the impugned show cause notice has clearly indicated that the extended period is being invoked on account of respondent having misdeclared the ingredients, formula and method of manufacture of Nivaran-90 cough syrups supplied as per Ayurvedic texts in their classification list/declaration filed and further that they suppressed the actual ingredients used by them in the said product, with intention to evade payment of duty. Viewed in this light, we are not able to apprec

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iate the lower appellate authority's finding that there is no case for invocation of extended period. In the event, we find in favour of the Revenue and allow the appeal which will have the effect of restoring Order in Original No. 3/2009 dt. 24.03.2009 passed by the original authority. Impugned order is set aside. Appeal is allowed.