TaxTMI 
TaxTMI 
2010 (10) TMI 400
X X X X Extracts X X X X
X X X X Extracts X X X X
....ebruary 2002, by way of issuance of a show cause notice dated 28-3-03. The appellants have assailed the impugned orders on merits as also on limitation. 2. After hearing both the sides duly represented by Shri V.S. Sejpal and Ms. H. Aparna, learned advocates appearing for the appellants and Shri Avinash Thete, learned DR appearing for the Revenue, we find that the description and method of use shown on the bottles/outer packaging of the above said products is as under : "1.' Lux Skin Care Moisturizing Body Wash' NEW INTERNATIONAL LUX SKINCARE Moisturising BODYWASH Discover a luxurious, moisturizing bathing experience. International Lux Moisturizing Body Wash with Double Moisturizing Action, goes deep down into your skin's pores and helps keep essential moisture in, leaving it moisturized and silky. Use regularly for best results. All you have to do is pour a little international lux moisturizing body wash on to your wet Lux (r) Lufa TM. Apply gently all over your wet body for rich, fragrant lather. Enjoy a whole new, moisturizing bathing experience. 2. 'Lux Skin Care Deep cleaning body wash'. NEW INTERNATIONAL LUX SKINCARE Deep Cleansing Body....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the two contending entries for better appreciation. At this stage we may reproduce the two contending entries for better appreciation. "34.02 - Organic surface-active agents (other than soap); surface-active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations, whether or not containing soap. 3402.10 --------------------------------------- 3402.90 - Other 16%" 33.07 - Pre-shave, shaving or after-shave preparations (not containing substances specified in Note 1(d) to this Chapter), personal deodorants, bath preparations, depilatories and other perfumery, cosmetics or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties." 6. The difference between the two entries is that whereas Chapter 34 covers cleaning preparations Chapter 33 includes bath preparations. 7. The appellants while contesting their case on merits before Commissioner (Appeals) have advanced the following arguments : "(a) That the products viz. Lux Body Wash (150 ml.) are preparations of Organic Surface Active Agents in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for washing of skin under Heading No. 34.02, the Department ought to have carried out the specified tests through the Deputy Chief Chemist for substantiating the applicability of said Chapter Note-3 and to confirm whether appellants claim was correct or not; (j) That the basic use and properties of all the three products under reference are for washing and cleaning of skin and human body which is achieved by combination of Organic Surface Active and Additives which are present for rendering the product stable and for easy handling; (k) That all the three body washes are not only formulated, manufactured and registered by the FDA Authority as preparations of OSAA for washing of skin but they are also packed and presented in the market accordingly; (l) That perusal of packing labels it would be amply clear that the said products has been formulated with the key ingredients which are OSAA and they have been marketed as Liquid Soap for bathing and washing of skin; (m) That they compositions/formulations, the end use, the application, and the manner in which the said products are understood, traded and consumed in the market support their claim that they are Orga....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elow : "(iii) Bath preparations, such as perfumed bath salts and preparations for foam baths, whether or not containing soap or other organic surface active agents. Preparations consisting wholly or partly of organic surface active agents, in the form of liquid or cream, whether or not put up for retail sale for use in washing the skin, are classified in heading 34.02". (s) That in view of the HSN their products under reference are specifically excluded from the scope of Heading 33.07 and specifically included under the scope of Heading 34.02. Accordingly the scope of the exclusion Clause-1(C) of Chapter 34 would not apply to the products under reference and the HSN supports their claim of classification under Heading 34.02 of CETA, 1985; (t) That they submitted classification declarations disclosing therein all the details including the product names, manufacturing process, packing, applications etc. There has been no misstatement or suppression of facts of what so nature. It is their bona fide belief and claim even today that the said products are correctly classified under sub-heading 3402.90 and therefore, there are no grounds for invoking large period under ....