TaxTMI 
TaxTMI 
2009 (1) TMI 376
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....tar' to M/s. Dhariwal Tobacco Products Ltd. without payment of C. Ex. duty. The manufacture was carried out in the premises of the appellants and the same was undertaken by Kannauj based M/s. Mohammad Sufian & Brothers; represented by Mohammad Sufian and his brother Najmul Islam, and the appellants paid Rs. 350/kg. to M/s. Mohammad Sufian & Brothers. For the said purpose, the appellants supplied the raw materials and necessary equipments. Hina Attar was manufactured in the premises of the appellants without the aid of power. For this purpose, the appellants had also entered into a contract dated 8-6-2000 with the aforesaid M/s. Mohammad Sufian & Brothers. A Show Cause Notice was issued to the Appellants in June, 2003 for the period 5-9-98 to 23-9-02 and duty of Rs. 2,31,82,404/- was demanded on the basis that Attar Hina was a mixture of odoriferous substances and thus classifiable under Ch. 3302.10 of the First Schedule to the C. Ex. Tariff Act, 1985. Since CSH 3302.10 was excluded from the benefit of Notification No. 167/86, dated 1-3-86, duty was demanded on Attar Hina. Extended period of limitation was also invoked on the basis that the appellants had wilfully suppressed the fac....
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....entral Excise, Pune-II has held that 'Attar Hina' was classifiable under Chapter Sub-heading 3302.10 of the Central Excise Tariff Act, 1985 and was thus not entitled to exemption under Notification No. 167/86, dated 1-3-86. He has thus confirmed the duty demand of duty of Rs. 2,31,82,404/- together with interest. The Commissioner has also imposed an equal amount of penalty of Rs. 2,31,82,404/- on the appellants under Section 11AC of the Central Excise Act, 1944. Aggrieved by this Order, the appellants have filed this appeal. The appellants and the Revenue were heard at length and both the sides were directed to file written submissions in the matter. 6. Shri Mayur Shroff, learned Advocate, submitted that Attar Hina was appropriately classifiable under Chapter Heading 33.01 and thus no duty was payable on the said product by virtue of exemption under Notification No. 167/86, dated 1-3-86. He submitted that the product Attar Hina was a concentrate of essential oil in sandalwood oil base and sandalwood oil was used as a fixative. He submitted that Attar Hina was manufactured by traditional process, whereby the receiver was filled with base material and the vapours formed on heating....
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....ed that sandalwood oil remained the traditional base irrespective of the type of Attar; whether Rose Attar or Kevra Attar or Hina Attar. He stated that the odoriferous constituent of the Attar was extracted by boiling the various ingredients in the pot and the particular aroma of the Attar thus formed was fixed by allowing the vapours formed on boiling to settle on the sandalwood oil base. As far as the role of sandalwood oil was concerned, he submitted that sandalwood oil played the role of a fixative and submitted that sandalwood oil was traditionally used in all attars, because it vaporized at a high temperature, which ranged between 285 to 290 degrees centigrade and was not readily volatile at the ordinary room temperature. He relied upon the judgment of the Hon'ble Madras High Court in Mettur Sandalwood Oil Company v. The State of Madras - [1965] 16 STC 9W, wherein the Hon'ble Madras High Court had held that sandalwood oil was a vegetable oil falling within serial no. 20 of the First Schedule of the Sales Tax Act and stood excluded from serial number 51, which referred to 'scents and perfumes, powders, snows and scented hair oils'. The Hon'ble High Court had observed that fixa....
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....the attributes of the particular fragrance like Hina or Rose or Kevra were imparted by the vapours, which were allowed to be settled on the sandalwood oil base. He further referred to the report of the Chief Chemist dated 18-5-95, issued under C. No. 63 Ex. 6/94 in respect of Attar Motia manufactured by M/s. Hargovindas & Sons, Kannauj stating that the sample was composed of concentrates of essential oil absorbed in sandalwood oil base (a-fixative) and also stating that the sample had got the characteristic of Attar, other than mixture of odoriferous substances. The said test report also comprised of test results for Attar Kevra, Oul Hina and Attar Hina and stated that the samples were composed of concentrates of essential oil absorbed in mineral Hydro Carbon (Liquid Paraffin) fixative. The learned Advocate submitted that when the Attar Motia was held to be a concentrate of essential oil in sandalwood oil base and when the other Attars were held to be concentrates of essential oil in mineral Hydro Carbon (Liquid Paraffin) fixative and when both, sandalwood oil and liquid paraffin were held to be fixatives, the Attar Hina in Appellants' case was nothing but a concentrate of essentia....
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....ential oil and thus both the products are different was assailed on the basis that when Attar Motia, a concentrate of essential oil absorbed in sandalwood oil base, was not considered to be a mixture of essential oil in the form of vapours and sandal wood oil by the chief chemist and was held to be other than mixture of odoriferous substances by him, the Attar Hina, a concentrate of essential oil and sandalwood oil, could not possibly be considered to be a mixture of essential oil in the form of vapours and sandalwood oil or a mixture of odoriferous substances. He also submitted that the fixative base, whether sandalwood or liquid paraffin, did not make any difference, as the difference was only as regards quality and not identity; the sandalwood oil based Attar Hina was costlier, while that based on mineral hydrocarbon was cheaper. The learned Advocate also referred to the letter dated 20-9-2004 of Chemical Examiner Gr. I as per the communication dated 27-9-04 of the Range Superintendent, wherein it was stated that the sample of Attar Hina, in appellants' case, was composed of essential oil. He stated that though the letter stated that the Chemical examiner wanted to visit the fac....
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....pon to determine the earlier classification as per the following judgments :- (i) Chadha Metals v. Commissioner of Customs, New Delhi - 2005 (179) E.L.T. 78 (Tri.-Del.). (ii) C-Net Communications (I) Pvt. Ltd. v. Commr. of Customs (Import), Mumbai - 2004 (170) E.L.T. 446 (Tri.-Del.). 7. The learned Advocate submitted that denial of exemption under Notification No. 167/86, dated 1-3-86 on the basis that Attar Hina was out of the purview of the said notification as it was classifiable under CSH 3302.10 was even otherwise erroneous as no excise duty was paid by the Attar manufacturers during the time, when the aforesaid notification was in force. He submitted M/s. Dhariwal Industries Ltd., the buyers of Attar Hina from the appellants, were also purchasing Attar Hina and other Attars from various Kannauj based manufacturers. He referred to the invoices of M/s. Hargovind Das & Sons and S. Md. Ayub Md. Yakub (Perfumers) Pvt. Ltd. in support of his submission that no duty was paid on Attar Hina by the other manufacturers. He further submitted that even as per the Departmental perception, the Attar Hina was not a mixture of odoriferous substances covered under Chapter 33.02;....
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....rded on 11-6-02, wherein he had stated that the Appellants had not declared product 'Attar-Hina' to the Central Excise Department as it was not an excisable product. In the aforesaid statement, Shri Prakash Dhariwal had further stated that Attar Hina was a natural product i.e. Attar of natural spices and the product was a Kannauj based product where no excise duty was levied upon and had also produced invoice of M/s. Md. Shoeb & Sons Kannauj, U.P., bearing their invoice no. 7, dated 28-8-2000 with his dated signature to support his contention. The learned Advocate also referred to the statement of Shri R.M. Dhariwal, Karta of R.M. Dhariwal (H.U.F.), recorded on 8th April 2003, wherein the said Karta had stated that they had not included Attar Hina in Central Excise License as no Central Excise duty was leviable on the said product which was an 'Essential Oil' and moreover nobody was paying Central Excise Duty on such product in the country as the same did not attract Central Excise duty. It was submitted that the aforesaid statements established that the Appellants harboured a belief that the product was not excisable on the basis of the fact that the other manufacturers of the sai....
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....that they have not disclosed to the Department that they were manufacturers of 'Attar Hina' and cleared from their manufacturing place without payment of duty intentionally was contrary to his statement dated 11-6-02 as Shri Prakash Dhariwal has, in fact, stated that they had not declared product 'Attar-Hina' to Central Excise Department as it was not an excisable product and that Attar Hina was a natural product i.e. Attar of natural spices and the product was a Kannauj based product where no excise duty was levied upon. Further, Shri Prakash Dhariwal had also produced invoice of M/s. Md. Shoeb & Sons Kannauj, U.P., bearing their invoice no. 7, dated 28-8-2000 with his dated signature to support his statement. The learned Advocate thus submitted that the non-payment of duty was based on bona fide and justifiable belief and longer period of limitation was not invocable as there was no suppression or intent to evade duty on the part of the appellants. The Advocate, inter alia, relied on the following judgments in this connection :- (i) Tamil Nadu Housing Board v. Collector of Central Excise, Madras - 1994 (74) E.L.T. 9 (S.C.). (ii) Pushpam Pharmaceuticals Company v. Collector ....
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....the manufacturers of Attar Hina. He also stated that the payment of Sales tax or deduction of tax at source from payments made to job workers did not make the appellants-manufacturers of Attar Hina. The learned Advocate relied upon the following decisions in support of his submission that the job workers and not the appellants were the manufacturers of Attar Hina :- (i) M/s. Indian Rayon & Industries Ltd. v. Commissioner of Central Excise Bangalore-I - 2007 (212) E.L.T. 358 (Tri.-Bangalore). (ii) Hindustan Petroleum Corporation v. Commissioner of Central Excise Bhopal - 2004 (174) E.L.T. 31 (Tri. - Del.). (iii) M/s. Blue Star Ltd. v. Collector of Central Excise, Madurai - 1999 (107) E.L.T. 609 (Tribunal). (iv) Tamil Nadu Electricity Board v. Commissioner of C. Excise, Coimbatore - 2001 (133) E.L.T. 639 (Tri.-Del.). (v) Nahar Spinning Mills Ltd. v. Commissioner of Central Excise, Bhopal - 2002 (141) E.L.T. 379 (Tri.- Del.). (vi) Punjab Project & Construction Pvt. Ltd. v. CCE, Bhubaneshwar - 2002 (142) E.L.T. 154 (Tri.- Del.). (vii) India Cements Ltd. v. Additional Commissioner of C. Excise, Madura - 2000 (117) E.L.T. 131 (Tribunal). 10. On behalf of the Depar....
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....d to the article The Fragrance of greatness by Harpreet Kaur from the site www. Dancewithshadows.com. He referred to the process of making Attars as per the aforesaid article. In the said article it is, inter alia, stated as follows :- " ... In the traditional process various flowers, roots, herbs, spices, etc. are hydro-distilled in copper vessels into a receiving vessel containing sandal wood oil. A certain proportion of flowers or other aromatic plants are put into copper vessel containing water, sealed and heated. Their aromatic vapours rise through bamboo pipes and pass into another copper vessel containing sandal wood oil, sitting below the larger distilling one. Sandalwood oil is the base with which each extracted oil has to be mixed to give a distinctive smell and whiff. These vapours condense, and after days of distillation, the water and oil separate, allowing most of the aromatic molecules to become adsorbed in the sandal wood oil." On the basis of the aforesaid article, the learned Jt. CDR submits that Attar Hina is a mixture of extracted oil with sandalwood oil and thus the said Attar is classifiable under CSH 33.02 as a mixture of odoriferous substances an....
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....re supplied by the Appellants, the appellants had paid Sales Tax and issued TDS certificates to the contractors and manufacture was carried out in the appellants' premises. Thus the appellants were the manufacturers of Attar Hina. The learned Jt. CDR placed reliance on the following judgments in support of his proposition that the appellants and not M/s. Mohammad Suffian & Brothers were the manufacturers of Attar Hina :- (i) Interscape v. Commissioner of C. Excise, Calcutta-I - 2001 (135) E.L.T. 942 (Tri.-Kolkata). (ii) Mistry Brothers v. Commissioner of Central Excise, Ahmedabad - 2006 (200) E.L.T. 350 (Tri.-Mumbai.). (iii) Maruti Udyog Ltd. v. Collector of Central Excise, New Delhi - 2001 (134) E.L.T. 188 (Tri.-Del.). 12. In his rejoinder, the learned Advocate has submitted that the term "Attars of all kinds in fixed oil base" would cover "Attars in sandalwood oil base". He submitted that sandalwood oil functioned as a fixative for holding the fragrance and retarding the evaporation rate. This function was achieved by allowing the volatile vapours of herbs to settle on sandalwood oil. The words 'fixed oil base' accompanying the description 'Attars of all kinds" were t....
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....fixed oil): In perfumery, a material that slows down the rate of evaporation of the more volatile materials in a perfume composition. So-called vegetable oils fall into this category. The learned Advocate also submitted that even otherwise sandalwood oil comprised of a large amount of fixed oil as well as volatile oil and thus the description "Attars of all kinds in fixed oil base" would appropriately cover Attar Hina, wherein sandalwood oil was used as a fixative. He referred to page 181 of the The Chemistry of Essential Oil and Artificial Perfumes by Ernest J. Parry- Fourth Edition in this connection. The Advocate also submitted that it was because of the fact that sandalwood oil had a high boiling point and had low volatility that it was used as a fixative in the preparation of Attars to ensure long lasting fragrance and was not known as a perfume but a substance used extensively in preparation of perfumes as held by the Hon'ble High Court of Madras in Mettur Sandalwood Oil Company v. The State of Madras - [1965] 16 STC 9W and the Hon'ble Bombay High Court in Commissioner of Sales Tax, Maharashtra State, Bombay v. Gordhandas Tokersey - [1983] 52 STC 381W. He further submitted....
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....he Test report dated 18-5-95, issued under C. No. 63 Ex. 6/94 in respect of Attar Motia manufactured by M/s. Hargovindas & Sons, Kannauj, referred to by him earlier, specifically stated that the sample was composed of concentrates of essential oil absorbed in sandal wood oil base (a-fixative) and also stated that the sample had got the characteristic of Attar, other than mixture of odoriferous substances. He urged that in view of the above Test report dated 18-5-95 of the Chief Chemist, Central Revenues, it was abundantly clear that concentrate of essential oil in sandalwood oil base was not a mixture of odoriferous substances and thus it was not open to the Department to contend otherwise in respect of Attar Hina in appellants' case when it was also manufactured by the traditional process involving settlement of vapours of essential oil on sandalwood oil. Further, when the letter dated 5-7-05 by the Assistant Commissioner, Central Excise, Farrukhabad to M/s. Hargovindas & Sons based on the aforesaid Test report specifically communicated that essential oils absorbed in Sandalwood Oil were not mixtures of odoriferous substances and the product did not merit classification under Chap....
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.... Hina not being an essential oil was mistaken as apparent finding of the adjudicating authority that the vapours of herbs were essential oil. Further, while the impugned notice alleged that Attar Hina was not a aqueous distillate or aqueous solution of essential oil, the adjudicating authority arrived at a finding that the vapours of herbs were actually aqueous distillates of essential oil. Thus there were contradictions in the allegations and findings. However, it was never the Department's case that Attars in fixed oil base would not cover Attars based in sandalwood oil as sandalwood oil was not a fixed oil. He submitted that the point now canvassed by the learned Jt. CDR was extraneous to the impugned order and the impugned notice and the Revenue was precluded from raising it. He relied on the following judgments in this connection :- (i) Reckitt & Colman of India Ltd. v. Collector of Central Excise - 1996 (88) E.L.T. 641 (S.C.). (ii) Prince Khadi Woollen Handloom Prod. Coop. Indl. Society v. C.C.E. - 1996 (88) E.L.T. 637 (S.C.). (iii) SACI Allied Products Ltd. v. Commissioner of C. Ex., Meerut - 2005 (183) E.L.T. 225 (S.C.). 14. We have carefully considered the riva....
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....pt aside for fermentation. We find that from the manufacturing process placed on record by the Department, there is no such heating of vapours of herbs and sandalwood oil. Thus the finding of the Commissioner that the heating of vapours and sandalwood oil has resulted in the mixing of the vapours and oil is fallacious. The consequent conclusion that Attar Hina is a mixture of Sandalwood oil and condensed vapour of herbs is thus incorrect in view of his finding that mixing or blending of vapours of herbs was essential to get Attar Hina and for this purpose, the ready mix was heated for a few days. In the aforesaid article "Fragrances, flavors & Attar: Kannauj" by Fragrance and Flavour Development Centre, Kannauj, the traditional manufacturing process has been given and even from the said article, it can be seen that the receiver is allowed to cool after the vapours are condensed into the base material. Thus the above finding of the Commissioner is unsustainable. 17. The Commissioner has arrived at a finding that the vapours of herbs are not concentrates of essential oil but in actual are aqueous distillates of essential oil as mentioned in Para (D) of the explanatory notes ....
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....63 Ex. 6/94. The said Test Report is, inter alia, in respect of Attar Motia manufactured by M/s. Hargovindas & Sons, Kannauj and states that the sample is composed of concentrates of essential oil absorbed in sandalwood oil base (a-fixative) and further states that the sample has got the characteristic of Attar, other than mixture of odoriferous substances. The said test report also comprises of test results for Attar Kevra, Oul Hina and Attar Hina and states that the samples are composed of concentrates of essential oil absorbed in mineral Hydro Carbon (Liquid Paraffin) fixative. In his letter dated 5-7-95, addressed to M/s. Hargovindas & Sons, the Assistant Commissioner, Central Excise, Farrukhabad has specifically conveyed to the said Attar manufacturer that the sample drawn from them had the characteristics of Attar/other than mixture of odoriferous substances as per the analysis report of the Chief Chemist, New Delhi, and did not merit classification under Chapter Heading No. 3302.90. The traditional process followed for the manufacture of natural Attars is the same and vapours of essential oil is allowed to settle on base oil. We see force in the submission of the Advocate th....
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.....P. Anantanarayan, Joint Agricultural Marketing Adviser to the Government of India, Ministry of Food and Agriculture, CD. & Co-operation, communicating that sandalwood oil cannot be called as a perfume on its own but was only a vehicle for high-class perfumes as its own value as perfume was insignificant, the Hon'ble Bombay High Court arrived at a conclusion that sandal wood oil was not a perfume. We thus find force in the submission of the learned Advocate that sandalwood oil is a traditional fixative because of its high boiling point and low volatility and its role is to prevent rapid volatilization, provide uniformity in the rate of volatilization and to increase the odour life of the Attar. Hawley's Condensed Chemical Dictionary (Eleventh Edition) defines fixative in the perfumery industry as a fixing agent for the perfume and also defines fixing agent (perfume) as a substance which prevents too rapid volatilization of the components of a perfume and tends to equalize their rates of volatilization. From the Hawley's Condensed Chemical Dictionary, it can also be seen that the fixing agent increases the odour life of a perfume and keeps the odour unchanged. The Test report dated ....
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....vegetable oil as well as under CSH 3301 29 47 as an essential oil. We thus find that the inclusion of sandal wood oil in CSH 3301 29 37 as an essential oil would not be fatal to the inclusion of Attars based in sandalwood oil in CSH 3301 90 31. The contention that eight digit 8 digit tariff can be relied upon to determine the earlier classification for the earlier period is also valid. In Chadha Metals v. Commissioner of Customs, New Delhi - 2005 (179) E.L.T. 78 (Tri.-Del.), it has been held that the 8 digits classification Customs Tariff in 2004 is only a more detailed and expanded classification. Similarly, in C-Net Communications (I) Pvt. Ltd. v. Commr. of Customs Import), Mumbai - 2004 (170) E.L.T. 446 (Tri.-Del.) support was drawn from the classification under the 8 Digit Tariff for the view taken on earlier classification. We find that when Attars are specifically included in CSH 3301 90 31 and do not figure in Chapter Heading 33.02 in the 8 digit tariff, it can be deduced that Attars were classifiable under Chapter Heading 33.01 and not under Chapter 33.02 in the earlier tariff. The fact that the Exim Code allotted to Attars was 3301 90 31 under Notification No. 14 (RE-98)/9....
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....oil", which mandated exclusion of mustard oil from its fold. The Hon'ble High Court also noted that the United States recognized both the natural and synthetic oils as 'Volatile Oil of Mustard' or 'Allyl Isothiocyanate'. The Hon'ble High Court held that since the Petitioners therein were extracting only the fixed oil from mustard seeds, the mustard oil was covered under the expression "Vegetable non-essential oil". In the present case, the dispute is whether the sandalwood oil used as a fixative in perfumery industry can be held to be a fixed oil base in the context of Attars, which are traditionally manufactured in sandalwood oil base. From the various definition of fixative in the context of perfumery industry; from the fact that sandalwood oil is used as a fixative because of its high boiling point and low volatility; from the fact that sandalwood oil comprises of a large amount of fixed oil as well as volatile oil, as seen from The Chemistry of Essential Oil and Artificial Perfumes by Ernest J. Parry - Fourth Edition and; from the evidence to the effect that fixative in perfumery industry is also known as fixed oil, as per the literature of Aromatherapy basics from kalyx.com an....
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....f the Hon'ble Supreme Court in Damodar J. Malpani v. Collector of Central Excise - 2002 (146) E.L.T. 483 (S.C.), has held that uniformity in classification has to be maintained and when the appellants had produced evidence that identical products of their competitors were either not taxable or reported as exempted falling under Chapter 9, in various Commissionerates, the question of classifying the products in question under Chapter 21, as excisable, would give rise to a dichotomous situation. The learned Jt. CDR has relied upon the judgment of the Tribunal in Collector of Central Excise, Kanpur v. Kothari Products - 2002 (148) E.L.T. 1056 (Tri.-Del.) in support of his contention that there were instances, where duty was paid on Attars. We find that the aforesaid decision does not deal with the issue of classification or dutiability of Attars and is on the point of availability of Modvat credit on perfumed sandalwood oil in a situation where sandalwood oil was sent to job workers for manufacture of 'mixture of odoriferous substances' falling under sub-heading 3302.90 and the job workers returned perfumed sandalwood oil to the appellants therein. The Appellants therein had never con....
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.... reason for the appellants to hold a belief that Attar Hina did not attract excise duty. The appellants had been supplying Attar Hina to M/s. Dhariwal Industries Ltd. under the cover of invoices and were paying Sales Tax and other dues to the Government. Thus there was no wilful suppression of facts or intent to evade duty on the part of the appellants. As held by the Hon'ble Supreme Court in Cosmic Dye Chemical v. Collector - 1995 (75) E.L.T. 721 (S.C.), longer period of limitation can be invoked only when there is wilful suppression on the part of the assessee. In Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay - 1995 (78) E.L.T. 401 (S.C.), it has been held for invocation of longer period, the suppression should be deliberate to escape from payment of duty. In Gopal Zarda Udyog v. Commissioner of Central Excise, New Delhi - 2005 (188) E.L.T. 251 (S.C.), it has been held by the Hon'ble Supreme Court that unless there is evidence that the manufacturer knew that the goods were liable to duty or he was required to take out a licence, there is no scope to invoke the proviso to Section 11A(1). The Hon'ble Apex Court further held that for invoking the extended pe....
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.... from various traders and the circumstances constituted evidence that there was no justification for holding a belief that the product did not attract duty. The aforesaid judgment was distinguished by the Apex Court in Gopal Zarda Udyog v. Commissioner of Central Excise, New Delhi - 2005 (188) E.L.T. 251 (S.C.) on the basis that in the case of Dharampal Satyapal there was a finding of the Commissioner that the assessee M/s. Dharampal Satyapal knew that kimam was liable to duty and that it was required to obtain 'L-6' licence because M/s. Dharampal Satyapal used to buy Lucknowi Kimam from the other manufacturers, who used to manufacture Lucknowi Kimam after obtaining registration and the requisite licence. The Apex Court held that the judgment of M/s. Dharampal Satyapal would not apply as there was no such finding in the case of Gopal Zarda Udyog. In the present case, the Appellants have specifically contended before the Commissioner that no other Attar manufacturers were paying duty on Attars and the said contention has not been disputed by the Commissioner. Further, the appellants had also produced documentary evidence of non-payment of duty by other Attar manufacturers at the tim....