TaxTMI 
TaxTMI 
2010 (1) TMI 1134
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....nly dispute raised in this petition is whether the item being sold by the applicant under the brand name "Double Mazza" (in short, "dispute item") is a taxable item or not. The disputed item is sold in a pouch having two parts-one containing "tobacco" and the other "pan masala". According to the petitioner, it is an item falling under entry against serial No. 82 of Schedule I to the 1994 Act. During the course of assessment for the period in question, the assessing authority observed as below: "The item 'double mazza' consists of two commodities-one is "zarda", a Schedule I goods and the other is 'pan masala', a Schedule IV goods poured in a single pouch marking two parts separately but the customer has no option to buy it either as 'zarda' or 'pan masala' but the whole at a time and as an officer, I have no scope to calculate the tax on 'pan masala' and exempt the 'zarda'. Hence, I consider the item 'double mazza' as a taxable item under Schedule IV. So I disallow the sale of 'double mazza' of Rs. 47,62,500 as a claim of Schedule I goods. . ." The applicant being aggrieved and dissatisfied with the assessment order dated June 5, 2006 filed an appeal petition before the ap....
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.... and in view of various judicial decisions, the disputed item should not be treated as an unspecified item attracting tax at 10 per cent. On the contrary, it was claimed by the learned advocate that the disputed item should come within the purview of entry 82 of Schedule I to the 1994 Act. He drew our attention to the said entry, which reads as below: "82. Tobacco as referred to in the First Schedule to the Central Excise and Salt Act, 1944 (1 of 1944) including cigarette, cigar, cheroot, smoking mixture for pipe and cigarette, bidi, chewing tobacco, snuff and tobacco for hookah, that is to say, tobacco paste, ready for using hookah, when all such items are manufactured or made in India." It was contended by the learned advocate that the disputed item should be treated as an item falling within the meaning of "chewing tobacco". He also drew our attention to the certificate dated March 10, 2006 issued by the Superintendent, Central Excise, Guwahati Range, certifying that pan masala manufactured by the applicant contained tobacco. It was further stated in the said certificate that the item stood covered by Central Excise Tariff, sub-heading No. 24039990 and was subjected to Add....
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....edule to the Central Excise and Tariff Act, 1944 (1 of 1944), the respondent-authorities rightly treated the disputed item as an unspecified item. It was further submitted that the cases relied upon by the applicant have no applicability in the present case. In the case of Kothari Products Ltd. v. Government of Andhra Pradesh [2000] 119 STC 553, the honourable Supreme Court held "gudka (gudaku)" was specifically covered by Central Excise Tariff Entry 2404.11 and 2404.12. It was pointed out by the learned State Representative that "gudka (gudaku)" constitutes mainly tobacco with little molasses and pan masala is a distinctly different commercial product. As regards Sukhram Jagannath [1982] 50 STC 76, it was submitted that the honourable Gujarat High Court proceeded on the basis that the ingredients, namely, tobacco, chuna, supari retained their individual identity and no different commercial commodity came into existence which is not the case here. In the case of Gulabchand Harekchand [1985] 59 STC 224 (Cal), the item was "gudaku" and the question before the honourable High Court was whether "gudka" would fall within the meaning of toothpaste or denitrifice or be treated as tobac....
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....bmission makes it clear that pan masala sold alone with tobacco under the brand name "Double Mazza" does not contain tobacco within itself. The honourable judges of the honourable apex court, Gujarat High Court and Calcutta High Court came to their respective decisions on the basis of facts which are different from the fact of this case. Those decisions have no applicability in this case. Test certificate as relied upon by the applicant does not show whether contents from both the parts of pouch were tested. Certificate dated March 10, 2006 of the Superintendent of Excise, Guwahati shows that the disputed goods are covered under Central Excise Tariff Act, sub-heading No. 24039990. The said sub-heading covers items of three different description, namely, "pan masala" containing tobacco, "gudka"; all goods, bearing a brand name; and all goods, not bearing a brand name (other than pan masala containing tobacco). But from the submission made by the applicant, it appears that "tobacco (zarda)" and "pan masala" retained their distinct identity in respective parts of a single pouch and "pan masala" itself does not contain "tobacco". The argument that additional excise duty was levia....