TaxTMI 
TaxTMI 
2004 (6) TMI 13
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....ol cases of 320 ml and 500 ml having spraying device for household use with a declaration on the cans 'Repels Mosquitoes and other flying insects'. The assessee had replaced the words "Repels Mosquitoes and other flying insects" by the words "Control Mosquitoes and other flying insects"." They had removed the subject entity after payment of duty on value as under Section 4 of the Central Excise Act, 1944, where they were, as found by the lower authorities to discharge duty under Section 4A of the Central Excise Act, 1944 in terms of Notification No. 9/2000-C.E. (N.T.), dated 1-3-2000 and Notification No. 5/2001-C.E. (N.T.), dated 1-3-2001 as covered under Sr. No. 37 of the table to the notification, entry read as "Mosquito coils, mats an....
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....spute i.e. the aerosol can and the 'Mosquito coil' being manufactured is same i.e. Allethrin and in same percentage in both the products. (c) Allethrin is an insecticide, in its effect, is not in dispute. As per the use of Allethrin, The Pesticide Manual Tenth Edition, prescribes the following under the heading 'Applications' - "Mode of action Non-systematic insecticide with contact, stomach and respiratory action, Gives rapid knowckdown. Paralyses insects before killing them. Uses control of flies, mosquitoes, ants, and other household and public health insect pests. Often used with piperonyl butoxide or other synergists for control of chewing and sucking insects on ornaments, vegetables and other crops, for household and public heal....
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....e coil shaped incense which states that the temperature on combustion volatilizes effectively into the air the active ingredient Allethrin. Similarly the tablets placed on electric heater volatilize the active ingredient Allethrin into the air; the liquid also acts in the same manner by volatilizing the liquid containing the insecticide by electric heating; aerosols achieve the effect by transmitting the ingredient Allethrin into a cloud/fog they create, by the spray action. "....... In order to serve customers and society the application technology of mosquito repellent incense, electro-thermal mosquito repellent incense, liquid mosquito repellent incense, aerosol and spraying agent, etc. and the application of Kangmei's raw materials a....
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....uito Liquid, would be covered as Repellents under the entry 37 to the notification which reads as - "Mosquito coils, mats and other mosquito repellants" and the same insecticide acting and delivered in same fashion could not be a repellant and covered by that entry". (f) The appellants have tried to distinguish between insecticides that kill and insecticides that repel and submit that should be different. They claims that the aerosol to be used for 'Kill' and of insecticide is without any basis. When mosquito coil with the same percentage of Allethrin as in the 'aerosol' and acting in the same fashion, i.e. by producing fog smoke, like the aerosol is not claimed to be a "Kill" type of insecticide by same assessee. No special reason is....
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.... relevant for classification. However, the change, in the advertising mode, would be relevant to show the conduct of the assessee to be an exercise in revenue avoidance. The line between avoidance and evasion is very thin. The Ghost of Westminister has been exorcised from the law in UK and also by the Apex Court in India. "Avoision" is an amalgamation of the words 'avoidance' and 'evasion' and is a recognized word being used in literature on the subject of Tax Dodging, Tax Shelters. There is a case of 'avoision' when advertisement declaration on packs are effected to synchronize with notifications. Such avoision needs no encouragement. Liability to penalties for violation of the provisions are to be upheld. The question only to be considere....