TaxTMI 
TaxTMI 
2015 (7) TMI 1034
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.... under Chapter sub-heading 3306.90. The Revenue treated the aforesaid classification as erroneous as according to it Close-Up Whitening also falls under Chapter sub-heading 3306.10 and not 3306.90. It also suspected that this product was deliberately misclassified in the said heading to evade payment of proper central excise duties by resorting to assessment of the product under Section 4 of the Central Excise Act, 1944 (hereinafter referred to as the 'Act') instead of assessment under Section 4A thereof. Investigation into the matter was initiated resulting into searching of the premises of the assessee. Some documents, which the Revenue claims to be incriminating in nature, were seized under Section 12 of the Act, including a Box File with Heading 'Production Manual', namely, the literature containing pages 1 to 235 issued by the Dental Information Centre of HLL. 3) On the scrutiny of these documents, the Revenue noticed that the difference in raw materials used for the product in question, namely, Close-Up Whitening, and the other products, i.e. Close-Up Red/Blue/Green is the additional presence of 2.8% and 0.2% w/s Silicon Agglomerate and Bluer Agglomerates r....
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....ct." 5) Aggrieved by the aforesaid order, the respondents herein filed appeals before the Custom Excise & Service Tax Appellate Tribunal, Mumbai (for short, the 'Tribunal'). These appeals have been allowed by the Tribunal vide impugned order dated March 11, 2005. In these appeals, validity and correctness of the aforesaid order of the Tribunal is questioned by the Revenue. 6) Before proceeding further, it would be necessary to take note of the exact language of the relevant entries. As mentioned above, it is the entry Heading 3306 of Central Excise Tariff Act, 1985, which is attracted in the present case. The only question is as to whether the product in question is to be classified under sub-heading 3306.90 or 3306.10. Chapter Heading 3306 of the Tariff Act, with the aforesaid sub-headings, is reproduced below: 33.06 Preparations for oral or dental hygiene, including dentifrices (for example, toothpaste and tooth powder and denture fixative pastes and powders) 3306.10 Tooth powders and toothpaste 3306.90 Other. 7) The Chapter Heading makes it clear that it covers various preparations for oral and dental hygiene. These preparations specifically include dentifrices.....
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....n the preparation of oral and dental hygiene is mentioned in the following form: 33.06 - PREPARATIONS FOR ORAL OR DENTAL HYGIENE, INCLUDING DENTURE FIXATIVE PASTES AND POWDERS: YARN USED TO CLEAN BETWEEN THE TEETH (DENTAL FLOSS), IN INDIVIDUAL RETAIL PACKAGES. 3306.10 Dentifrices 3306.20 Yarn used to clean between the teeth (dental floss) 3306.90 Other This heading covers preparations for oral or dental hygiene such as: (I) Dentifrices of all types: (1) Tooth pastes and other preparations for teeth. These are substances or preparations used with a toothbrush, whether for cleaning or polishing the accessible surfaces of teeth or for other purposes such as anticaries prophylactic treatment. Toothpastes and other preparations for teeth remain classified in this heading, whether or not they contain abrasives and whether or not they are used by dentists. (2) Denture cleaners, i.e., preparations for cleaning or polishing dentures, whether or not they contain agents with abrasive properties. (II) Mouth washes and oral perfumes. (III) Denture fixative pastes, powders and tablets. The heading also covers yarn used to clean between the teeth, in individual....
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....rms understand it and not the technical or scientific sense. Even it may be mentioned that the Hon'ble Tribunal in case Veto Co. Vs. CCE reported in 1992 (62) ELT 584 (T) in para 6 has held that the goods have to be classified under the tariff schedule according to their popular meaning or as they are understood in their commercial sense and not as per their scientific or technical meaning. While holding so the Hon'ble Tribunal has referred to the observations of the Hon'ble Supreme Court's judgment in case of Plasmac Machine Mfg. Co. Pvt. Ltd. Vs. CCE reported in 1991 (51) ELT 161 (SC) (Para 13)." 11) The aforesaid approach adopted by the Commissioner has been found fault with by the Tribunal. The Tribunal pointed out that there was material difference in the sub-heading 3306.10 in the Indian statute when contrasted with Harmonized Commodity Description and Coding System. Whereas, as per the tariff entry 3306.10 in the Excise Act, it is 'tooth powder' and 'toothpaste', under the Harmonized Commodity Description and Coding System, what is mentioned is 'dentifrices'. It is further noticed by the Tribunal that dentifrices was more generic....
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....wing reading: "24. In our considered view, the Tribunal erred in relying upon the HSN for the purpose of marker inks in classifying them under Chapter Sub-Heading 3215.90 of the said Tariff. The Tribunal failed to appreciate that the entries under the HSN and the entries under the said Tariff are completely different. As mentioned above, it is settled law that when the entries in the HSN and the said Tariff are not aligned, reliance cannot be placed upon HSN r the purpose of classification of goods under the said Tariff. One of the factors on which the Tribunal based its conclusion is the entries in the HSN. The said conclusion in the order of the Tribunal is, therefore, vitiated and, accordingly, set aside. We agree with the findings recorded by the Commissioner (Appeals)." 13) The issue, therefore, has to be decided dehors HSN Notes as aid thereof cannot be taken in the instant case. 14) Faced with the aforesaid position, Mr. Radhakrishnan argued that the Commissioner has also come to the conclusion that mere addition of one ingredient does not change the purpose, nature as well as character of the product and further the product was known in the market as 'toothpast....