TaxTMI 
TaxTMI 
2018 (10) TMI 79
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....hem as chewing tobacco/Zarda with the classification of chewing tobacco under Central Excise Tariff Sub-Heading as 24039910 and Zarda falling under Central Excise Tariff Heading 24039930. They were granted registration as on 31.03.2015. 3. Subsequently Assistant Commissioner vide his letter dated 06.04.2015 asked the appellants that as they have classified their product chewing tobacco under heading 24039910 and Zarda under heading 24039930 they are required to clarify as to why both the products which are identical has been classified under two different headings. The said letter was replied to by the appellant vide their letter dated 12.05.2015 clarifying that they were manufacturing chewing tobacco which is also called Zarda and both the products are classifiable under heading 24039910 and known in the market as chewing tobacco/Zarda/Bhugi etc.. They also detailed the process of manufacture undertaken by them wherein they submitted that the product intended to be manufacture by them is type of chewing tobacco containing tobacco, Quiwan, Glycerene and flavours. Since no scent is being added by them, their product cannot be considered to be Zarda scented tobacco falling under h....
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....s carried out as opening and closing balance in all the ER-1 returns filed for the subsequent months of June,2015, July 2015, August 2015 and September 2015. 5. It is seen that subsequently the appellant filed revised declarations for the months of June to September 2015 declaring their product as chewing tobacco falling under heading 24039910 and paid duty on chewing tobacco only, but the Assistant Commissioner vide his different orders arrived at the appellant's duty liability by treating the product as Jarda scented tobacco and fixed the annual capacities accordingly. All the four different capacity determination orders passed by the original adjudicating authority were appealed against by the appellant before Commissioner(Appeals) who vide common Order-in-Appeal upheld the same on the ground that once the appellant has filed the declaration in respect of the goods manufactured by them classifiable under heading 24039930, and there being no change either in the manufacturing process or in the raw materials, the appellants cannot be permitted to file revised declaration. The said Order-in-Appeal is impugned in four appeals. 6. In the above background proceedings were also i....
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....he same would attract higher rate of duty and if the Zarda falls under heading 2403 99 10 as chewing tobacco, there would be no duty liability on the appellants as they have already discharged their duty liability on the chewing tobacco. 9. The appellant's contention is that reference to heading 2403 99 30 which describes the goods Jarda scented tobacco was a mistake on their part inasmuch as they never manufactured the said product. In their reply to the Assistant Commissioner's letter, they have given a detailed process of manufacture of Zarda by them which is nothing but chewing tobacco. They have also referred to the Board's Circular as also to ISI specification which refers to the various names including Zarda by which chewing tobacco is known in various parts of the country. They have also contended that no scent is being used by them in the manufacture of their product and as such their product cannot be considered to be Jarda scented tobacco. In the said communication they have also made a request to the Revenue to get their goods tested or to visit their factory, which request of the appellant has not been acceded to by the authorities. 10. It is seen that the ent....
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....ellants have shown the classification of the jarda scented tobacco against their description of Zarda made in the declaration. 12. Whether Zarda has to be treated as Jarda scented tobacco or a chewing tobacco was the subject matter of various precedent decisions. Tribunal in the case of V.H. Patel Tobacco Pvt.Ltd. v. Commissioner of C.Ex., Aurangabad [1999 (113) E.L.T. 962 (Tribunal)] has held that Zarda manufactured by beating leaves and without any other ingredients is an unmanufactured tobacco falling under heading 24.01 of Central Excise Tariff Act, 1985 and not under heading 24.04. Further in the case of Collector of Central Excise, Pune v. Jaikisan Tobacco Co. [1986 (23) E.L.T. 184 (Tribunal)] it was observed that re-packing of raw tobacco flakes into small polythene packs and label the packs with the description of Zarda or Bhugi will not convert the tobacco into manufactured tobacco classifiable as Jarda. Further in the case of M.G. Mohite & Sons v. Collector of Central Excise [1992 (62) E.L.T. 810 (Tribunal)], it was held that tobacco sold by assessee, though known as Zarda, is only un-manufactured tobacco inasmuch as the same is not treated with additional ingredien....
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.... held in that case that assessee's product remains a chewing tobacco even after addition of flavouring substance. As the appellant in that case was marketing their product as "Flavoured Chewing Tobacco", the Tribunal agreed with the assessee that the same cannot be held to be a scented product. It was observed that Revenue has not produced any evidences on record to establish that the product has travelled from "Flavoured Chewing Tobacco" falling under chapter 2403 99 10 to "Jarda Scented Tobacco" falling under heading 2403 99 30, on account of addition of any material which would make the product as scented tobacco. The Tribunal in the above referred case has further observed that the expression "Chewing Tobacco" or "Jarda Scented Tobacco" are not defined anywhere in the taxing statute and as such, in the absence of same, the product has to be classified based upon the description of the product given by the manufacturer on the outer cover of the pouch as also on the basis of common parlance and established practice. As such by taking into account the decisions in the case of Prabhat Zarda Factory v. Commissioner [2004 (163) E.L.T. 485 (Tribunal)] as also the Hon'ble Supreme Co....
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....Zarda Scented Tobacco in the process of manufacture is missing. Zarda Scented Tobacco figures in the manufacturing flow chart given by Shri Dipak Suryakant Shah only. Furthyer, it was also brought to our notice that during the period from 19-1-2005 to 20-8-2005, the appellants had described the product in the classification list as Chewing Tobacco and from 1-3-2005, to 31-3-2006, it was classified Zarda Scented Tobacco and from 1-4-2006 onwards, the classification description was Chewing Tobacco which continues till today. In the invoice/bills prepared by the appellant, the item was described as Zafrani Zarda and from 1-4-2006, it is being called as Baghban Flavoured Chewing Tobacco. It is not the case of the department or the party that there was change in the label or manufacturing process. From the description in the label, it is quite clear that the product is called Flavoured Chewing Tobacco. No expert opinion or information from the trade have been obtained and it is only the statement of factory manager that the product is usually eaten with Pan, Betel nut or Pan Masala etc. Department has come to the conclusion that the product is not Chewing Tobacco. Further, as s....