TaxTMI 
TaxTMI 
2008 (11) TMI 465
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....acture and clearance of 'Henna Powder' in the unit containers intended to be sold to retail buyers under the brand name 'Goldiee Marwari Mehndi' and were not registered with the Department. In terms of S.N. 66 of Notfn. No. 4/2006 dated 1-3-2006 read with explanatory notes to the Finance Bill for the year 2006-07, exemption from payment of excise duty on 'Henna Powder' not mixed with any other ingredient, falling under Chapter 33 of the Schedule to the CETA 1985 was withdrawn and the same became chargeable to excise duty @8% adv. w.e.f. 1-3-2006. On being asked by the Department for getting themselves registered with the Department and to pay duty on goods cleared w.e.f. 1-3-2006 and to furnish a sample along with details of the goods clear....
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....l Excise Rule, 2002 and Rule 27 of said rules respectively. 5. Being aggrieved, the Appellant filed the Appeal along with stay application mainly on the following grounds : â That the learned Respondent ought to have appreciated the fact that the Applicants were manufacturing pure Henna Powder and the Henna Powder was not mixed with any other ingredients and under Chapter 1404 10 19 of Central Excise Tariff Act, 1985, the product Henna Powder was classified under a specific entry and the learned Adjudicating Authority has grossly erred by dragging the classification of Henna Powder on Residuary Entry of Chapter 33 of Central Excise Tariff Act, 1985. â That....
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.... UOI v. Garware Nylons Ltd. reported in 1996 (87) E.L.T. 12 (S.C.). â The learned Respondent ought to have considered the decision of Hon'ble Supreme Court in CCE Nagpur v. Vicco Laboratories, reported in 2005 (179) E.L.T. 17 (S.C.). â That the case of Henna Export Corporation v. CCE reported in 1993 (67) E.L.T. 907 was distinguishable inasmuch as in the said case classification of 'Red Rose Henna for Hair Dye', was finalized which was clearly distinguishable from the case of the appellants who were clearing Pure Henna Powder an/or Mehndi. â That the Appellants say that even in Harmonized Commodity Description and....
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....nd liable to be set aside only on this ground alone. Reliance is placed on 1990 (48) E.L.T. 3 (Alld.HC) in Geep Industrial Syndicate Ltd. v Asst. Commissioner. â The issue of classification is no more Res-integra and the same has already been settled by the Commissioner (Appeals), Kanpur in the identical matter of Appellant for different period. 6. Personal hearing in the case was held on 12-11-2008 which was attended by Shri Amit Awasthi, Advocate on behalf of the appellant and reiterated the submissions already submitted in Appeal and also submitted written brief which has been taken on record. No one appeared for hearing on behalf of revenue. Discussion & Findings :- 7. I have car....
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....dent from packing material, that it is a settled law that with regard to classification of goods and matter relating to chargeability, the burden is heavily cast upon the Revenue which has to prove its case with positive evidence, which has not been done and that the case of Henna Export Corporation v. CCE - 1993 (67) E.L.T. 907 is distinguishable in as much as in the said case classification of 'Red Rose Henna for Hair Dye' was decided which is distinguishable from the present case who were clearing Pure Henna Powder. 10. On careful consideration of arguments from both the sides, I find that the Adjudicating Authority has preferred the alternate classification of Henna Powder under Chapter 33 and no sub-heading thereof has been ref....