AI Drafter 
TaxTMI 
TaxTMI 
1990 (3) TMI 179
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....the appellants demanding duty amounting to Rs. 11,49,236.57 on account of the clearances of the product effected during the period from 1-3-1978 to 26-9-1979. In due course, the Assistant Collector who adjudicated the case held that as the mosquito coils contained pyrethrin, an insecticide, it was eligible for duty exemption and withdrew the notice. The Collector of Central Excise, on consideration of the record, felt that since the product was used for repelling rather than killing mosquitoes and since it contained pyrethrin only to the extent of 0.10%, he directed the Assistant Collector to file an appeal to the Collector of Central Excise (Appeals) for determining the legality, propriety and correctness of the Assistant Collector's order. The Collector (Appeals) allowed the Department's appeal. Thereupon, the manufacturer went in appeal to this Tribunal against the Collector (Appeals)'s order. The Tribunal, vide Order No. 428/88-C dated 2-5-1988, directed the Collector (Appeals) to redetermine the classification of the product in the light of the manufacturers' evidence and evidence, if any, of the Revenue. However, it directed that the demand for duty, if any, as a result of su....
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.... thereto and the Drugs & Cosmetic Act for interpreting the terms used in Notification No.55/75. Even so, the Collector has strangely and unwarrantedly, to put it very mildly, placed reliance inter alia on the provisions of the Insecticides Act in support of his finding in the impugned order. Since, however, he has also discussed certain other evidence, we do not propose to set aside the impugned order on the above ground alone. 9. In the Essen Synthetics case (supra), the Tribunal discussed the evidence placed before it and found that repellents, though they might not actually kill insects or pests, would still be treated as insecticides or pesticides. 10. We may now consider the evidence adduced by the Revenue in support of its stand. (a) The Assistant Collector, Central Excise, Thane-II Division, has filed an affidavit before the Collector (Appeals), (page 359 of the appellants' paper book). It states that during market enquiry by his officers, he came to understand that mosquito coil was known in the market as Tortoise Brand Mosquito coil. Illiterates call it "Machar Agarbatti'. It is not considered as insecticide/pesticide by traders or purchasers. It is not known or t....
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....the Insect behaviour and which help in preventing their occurrence or in killing and repelling them are broadly classified as "Pesticides". Moreover, in the scientific literature the world over, repellents have found place and have been treated in all publications under the category of "Pesticides". In view of above and of the intended use of your product, namely, "Tortoise Brand Mosquito Repellent Coils", can be decisively classified under the general category of "Pesticides" for all practical purposes." [page 310 of the Paper Book] (c) Registration-cum-Membership Certificate dated 29-3-1978 issued by the Basic Chemicals Pharmaceuticals and Cosmetics Export Promotion Council, Bombay certifying inter alia that mosquito coils has been registere d as a pesticides formulations under the Import Policy for Registered Exporters. [Page 311 of the Paper Book] (d) Certificates from dealers in pharmaceuticals, drugs, chemicals, cosmetics, insecticides, pesticides and fungicides and general merchants to the effect that in the trade and market mosquito coils are considered and regarded by dealers as insecticides/pesticides. [Page 312-316 of the Paper Book] (The Co....
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....he Collector (Appeals) has not considered these pieces of evidence, though he has noted many of them which, we find from the order, is true. As we have noted, the Collector has relied on the evidence placed before him by the Department, his own personal experience and the provisions of the Insecticides Act but has not discussed the mass of evidence produced by the appellants. 14. The Learned Departmental Representative, on the other hand, submits that the active ingredient, Pyrethrin, is present to the extent of only 0.10%. He also points out that it has come out during the proceedings that only Pyrethrin marc, and not Pyrethrin, is present. (This, however, does not appear to be correct or, at any rate, significant). The Chemical Examiner's test report on a sample of Tortoise Brand Mosquito Coil, as communicated by the Superintendent to the appellants in his letter dated 9-5-1985 (page 114 of the paper book) shows the presence of Pyrethrin to the extent of 0.1%. The earlier report of the Deputy Chief Chemist, as conveyed by the Superintendent on 17-9-1979 to the appellants (Page 41-42, paper book) shows that mosquito coil is manufactured out of pyrethr in marc which is a residue....