Page 229 - ELT_2nd_15th April 2020_Vol 372_Part

2020 ] COMMISSIONER OF CENTRAL EXCISE, PUNE-II v. SULAKHI CHEMICALS PVT. LTD. 275

with the permissible additives. Also, the department could not furnish any de-
tails of alleged comparable goods of M/s. Atlas Petrochemicals and M/s. Ram
Remedies even though specifically directed by the Tribunal in its order dated 15-
9-2003. Consequently, the Commissioner on the basis of test report, dropped the
proceedings against the respondents by its order dated 27-2-2006 which is subject
matter of the Appeal No. E/510/2007. The subsequent three show cause notices
were issued for the period January, 2002 to February, 2005 dropped by order
dated 30-3-2006 (subject matter of the Appeal No. E/733/2007). Hence, the pre-
sent appeals.
3. Learned Authorized Representative for the Revenue reiterates the
ground of appeal and submit that the Learned Commissioner erred in not con-
sidering the facts that the second and third distillates of naphtha which were
identical to the goods in question for sale by other manufacturers viz M/s. Atlas
Petrochemicals, Ahmedabad, M/s. GAIL, Bijapur, for sale of the solvent classi-
fied the same as substantial boiling point spirit under Chapter 2710.13 of the
Central Excise Tariff Act, 1985. He has further submitted that the samples of the
impugned goods were got tested by the laboratory of HPCL and not sent to
CRCL. The said laboratory reported that both the distillates are not capable to
use as fuel in spark ignition engine whether by themselves or admixture with
any other substance. It is his contention that HPCL themselves asserted that they
did not have any facility to upgrade the distillates, in such case the laboratory
has not tested the distillates in admixture with any other substance, therefore,
reliance on the said report by the adjudicating authority is incorrect. In support,
he has referred to the decision of the Hon’ble Supreme Court in the case of Com-
missioner of Central Excise, Indore v. M/s. Dhar Cement Ltd. [2015 (322) E.L.T. 411
(S.C.)].
4. Per contra, the Learned Advocate for the respondents has submitted
that pursuant to the Tribunal directions dated 15-9-2003, the samples were
drawn by the department and sent to HPCL for necessary testing. On analysis of
the sample, it was reported by the HPCL that products are not suitable either by
themselves or in admixture with other substance for use as fuel for spark ignition
engine, hence did not satisfy the second test for classification of the product un-
der Chapter sub-heading 2710.13. He has submitted that the issue is now settled
in favour of the respondent in the following cases :-
(i) Ram Remedies Pvt. Ltd. v. Commissioner of Central Excise, Nasik [2010
(254) E.L.T. 170 (Tri. - Mumbai)].
(ii) Shriram Petroleum Industries v. Commissioner of Central Excise, Nasik
[2010 (255) E.L.T. 317 (Tri. - Mumbai)]
(iii) Jagdamba Petroleum P. Ltd. v. Commissioner of Central Excise, Noida
[2004 (163) E.L.T. 88 (Tri. - Del.)]
5. It is their contention that the intermediate products are not classifia-
ble under tariff Heading 2710.13 and accordingly not excluded from the scope of
the exemption Notification No. 67/95-C.E., dated 16-3-1998. Further he has sub-
mitted that in any event, the larger period of limitations cannot be invoked in
the present case as in a series of cases held that the classification of the said
product is not under tariff Heading 2710.13 as motor spirit, therefore, there is no
suppression or mis-declaration on their part.
EXCISE LAW TIMES  15th April 2020  245