TaxTMI 
TaxTMI 
2017 (10) TMI 6
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.... The appellants were manufacturing kimam on which they were paying advalorem duty on value as per section 4 of the Central Excise Act, 1944. They were classifying the goods under heading 2404.41 as "chewing tobacco and preparation containing chewing tobacco" so long as the tariff was six digit based. With the introduction of the eight digit based tariff, they started classifying their product under 24039960 as "tobacco extracts and essence" and continued to pay duty as per section 4 of the Central Excise Act. The department was of the view that their product was rightly classified under 24039920 which is liable to be assessed under Section 4A ibid and hence the impugned demand and penalties. 3. The appellants have contended that: (i) ....
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....quid kimam thus produced is admixed with other items like spices and condiments, natural and artificial flavours, tobacco dura and silver leaves. The kimam is then packed into unit containers of 50 grams or 10 grams. The refuse tobacco leaves are dried under the sun in the open and stored in bags." 8. From the above process it is evident that Kimam is a preparation containing tobacco and is used in small quantities in making pan, even though it is generally not consumed as it is. The central excise tariff followed six digit classifications upto 2004-05. During this period, the appellant had classified its products under 2404.41 as "Chewing tobacco and preparation containing chewing tobacco." W.e.f. 2005-06 the Central Excise tariff....
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....the said Supreme Court judgment. The appellants have contended that kimam is not chewing tobacco or preparation containing chewing tobacco. However, in the light of the Supreme Court judgment, holding it to be covered under the scope of "preparation containing chewing tobacco (i.e. under the tariff sub-heading 2404.41: Chewing tobacco, preparation containing chewing tobacco"), there is no scope for any discussion in this regard because it can be no-body's case that if the impugned goods were covered under the expression "preparation containing chewing tobacco" at the time when the Supreme Court said they did, they would not be excludible from the said expression merely because of the passage of time. It is seen that under the eight digit ta....
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.... The appellants also plead that they have only been singled out for payment of duty under Tariff Heading 24039920, where duty is payable as per valuation under MRP structure under provisions of Sec. 4A of Central Excise Act. But the appellants have not been able to prove this argument and they have not shown any instance, where other assessees are manufacturing this item namely, 'kimam' and are being charged duty under different Tariff Heading. 13. Thus it is seen that the Commissioner (Appeals) held them guilty of suppression for not taking "initiative" and not consulting the department if they had any doubt while the appellants never stated that they had any doubt. In fact they have claimed that they were clearly of the view that their....