2004 (5) TMI 331

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....es are mostly for export and the third is for sale in the domestic market. Hair care products manufactured in India are liable to Central Excise duty under Chapter 33 which is for cosmetics, toilet preparations etc. More specifically, the classification is under Heading 33.05. That heading reads as under :- "33.05 Preparations for use on the hair   3305.10 Perfumed hair oils Others 18%   3305.91 Hair fixer 18%   3305.99 Other 30%" 2.  The appellant classified 'Jolen Country Born Styling Gel Hair Fixer' under heading 3305.91 as 'hair fixer'. Classification lists were being filed from time to time and the Central Excise authorities raised no objection. However, on 18-7-2002, a s....

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....r and is known in the market as such and is bought, sold and used as such and therefore, it is required to be assessed under the specific sub-heading for "hair fixer'' and not under the residual heading for "other" preparations for use on the hair. The appellants have referred to much evidence produced by them in support of their contention that hair fixers are used mostly by Sikh gentlemen and that, the fact of bulk of the sale being in Punjab itself is proof that the product is commercially transacted and used as hair fixer by persons dealing in it and using it. About the composition, the appellant has shown that one particular item used is PVP (Poly Vinyl Pyrolidone) which is a hair fixer according to Kirk Othmer's Encyclopedia of Chemic....

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....decision of the Apex Court in the case of Indian Metals & Ferro Alloys Ltd. v. Collector of Central Excise, 1991 (51) E.L.T. 165 (S.C.) wherein the Apex Court observed as under :- "16. One more aspect of the issue should be adverted to before we conclude. The assessee is relying upon a specific entry in the tariff Schedule while the department seeks to bring the goods to charge under the residuary Item No. 68. It is a settled principal that unless the department can establish that the goods in question can, by no conceivable process of reasoning, be bought under any of the specific items mentioned in the tariff, resort cannot be had to the residuary item: see the Bharat Forge case (supra).....". 5.  The learned SDR has contended ....