2018 (5) TMI 467

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....gether for disposal. 2. The appellant is engaged in the activity of re-packing of edible grade coconut oil in retail packs in their factory. Appellant has been engaged in this activity for more than two decades. The basic raw material used by the appellant is coconut oil and the process of preparation involves filtration, and this filtered oil is then filled in different packings. Appellant had been claiming classification of Anmol Coconut Oil under Chapter 15 of the CETA more specifically under Tariff Item 15131900 from 2005 (when the eight digit tariff classification was introduced). According to Revenue the product was classifiable under Chapter 33 under Tariff Item 33059019 as hair oil. For the period prior to 2005, the issue of clas....

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....nd claims from time to time, claiming refund of the duty so paid. 3. The period of refund claim and amount is involved is as follows: - Appeal No. Period of dispute Amount of duty (in Rs.) E/56834/2013 1.4.2012 to 30.9.2012 1,70,02,805/- E/51945/2015 June 2009 to August 2010 6,03,27,282/- E/51961/2015 October 2013 to March 2014 13,99,977/- E/70403/2016 October 2012 to September 2013 2,21,86,664/-   4. One such refund claim proceeding after successive rejection by the first Adjudicating Authority and the Commissioner (Appeals), reached this Tribunal Delhi Bench in Appeal No. E/3880/2012 and vide Final Order dated 29 May, 2015 reported at 2015 (324) ELT 398 (T). This Tribunal held the....

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....lar would be binding only if they are in accordance with the provisions of law and the same would not be biding if they are contrary to the provisions of law. In the present case, when validity of the Board's Circular dated 3-6- 2009 issued under Section 37B of the Act has been examined in detail by the Hon'ble Madras High Court in the case of VVD & Sons (Pvt.) Ltd. (supra) and when the Board's Circular has been held to be contrary to the provisions of Central Excise Act, 1944 and arbitrary and unreasonable and for the same reason, the same has been quashed, the Board's Circular cannot be treated as binding on the Departmental Officers. Moreover, the Kerala High Court in the case of Marico Ltd. (supra) has held that the circulars and depart....

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....n question, containing TBHQ, an anti-oxidant, it addition is permitted under Prevention of Food and Adulteration Act, 1954 to improve its shelf life by preventing its oxidation and hence rancidity. The addition of anti-oxidant does not make the coconut oil as suitable for use as Hair Oil. Even in terms of Board's Circular No. 166/77/95-CX, dated 29-12-199, the use of anti-oxidant as specified under Rule 59 of the Prevention of Food Adulteration Rules, 1955 will not alter the classification if they are meant only for preventing the rancidity of the oil. No evidence has been produced by the Department to show that the addition of anti-oxidants in coconut oil will make the same more suitable for use on hair. In view of the above discu....

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....hem have been conclusively decided in the favour of the appellant by this Tribunal, by its successive orders as noticed herein above. Further the aforementioned orders have attained finality as same have not been further appealed against. Thus the issue of classification is no longer res-integra. It is further relevant to take notice that the entire dispute arose because of the Circular dated 3 June, 2009 of CBEC, which has been quashed by Hon'ble Madras High Court in VVD and Sons Private Ltd vs. CBEC, 2014 (310) ELT 718 (Mad.), and also by the Hon'ble Kerala High Court in Merico Ltd vs. Union of India 2012 (282) ELT 180 (Ker.). Further the aforesaid orders of Hon'ble High Courts have been affirmed by Supreme Court reported at 20....