TaxTMI 
TaxTMI 
2019 (2) TMI 400
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.... 4/2006-CE dated 01.03.2006 as amended. 2. I confirm the total demand of as per the show cause notices dated 03.04.2008 & 23.09.2008 of Rs. 4,33,528/- (Rupees Four Lakhs Thirty Three Thousand Five Hundred and Twenty Eight only) comprises of Basic Excise Duty Rs. 4,20,900/- + Education Cess Rs. 8419/- + Secondary Higher Education Cess Rs. 4209/- for the clearance of the said product from the period from April 2007 to August 2008 under Section 11A of Central Excise Act, 1944 & order the recovery of the same. 3. I direct the assessee to pay the above amount with the interest as per the provisions of Section 11AB of the Central Excise Act, 1944. 4. I impose Penalty equivalent to duty amount confirmed i.e. Rs. 4,33,528/- (Rupees Four Lakhs Thirty Three Thousand Five Hundred and Twenty Eight only) as per the provisions of Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944." 2.1 Appellants are engaged in repacking of Henna Powder purchased in bulk in unit packages of 25 gms, 50 gms and 100 gms, and clearing the same. They were not discharging the duty payable on the clearance of Henna Powder cleared by them in unit pack. 2.2 Two....
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.... them in unit pack, the pack nowhere indicates that the powder has to be used as hair dye. v. The pack shows that it is to be applied on hands. vi. Thus the Henna Powder cleared by them merits classification under Chapter 14 and not 33 as held by the authorities below. vii. Chapter Heading 1404 nowhere restricts its scope to bulk packs only. viii. They rely on the decision in case of Shubham Goldiee Masala Pvt Ltd [2017 (5) TMI 1286 CESTAT Allahabad in their support. ix. It is well settled law that the goods should be classified under that heading which is more specific, [LML Limited [1997 (94) ELT 699 (T)] x. Thus the classification as made by them under heading 1404 is correct and demand cannot be sustained under heading 33049190. xi. Since the issue involved is in relation to classification penalty should not have been imposed as has been held in Surelia Engg Works [2007 (209) ELT 49 (T-Ahd)], Bharat Bijlee Ltd [2009 (234) ELT 652 (T-Mum)] xii. Since no duty has been short paid demand of interest cannot be sustained. 3.3 Arguing for the revenue learned Authorized Representative while reiterating the order of adjudicating authority and Commissioner (App....
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....powder SECTION VI PRODUCTS OF THE CHEMICAL OR ALLIED INDUSTRIES NOTES 3. ....... 4. Subject to Note 1 above, goods classifiable in heading 3004, 3005, 3006, 3212, 3303, 3304, 3305, 3306, 3307, 3506, 3707 or 3808 by reason of being put up in measured doses or for retail sale are to be classified in those headings and in no other heading of this Schedule. CHAPTER 33 Essential oils and resinoids, perfumery, cosmetic or toilet preparations NOTES 1. ..... 2. 3. Headings 3303 to 3307 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings of a kind sold by retail for such use. 4. ..... 5. In relation to products of headings 3303, 3304 and 3305, conversion of powder into tablets, labelling or relabelling of containers intended for consumers or repacking from bulk packs to retail packs or the adoption of any other treatment to render the products marketable to the consumer, shall be construed as 'manufacture'. 3304 BE A UT Y O R M A KE - UP P R E PAR AT I O N S AN D PREPARATIONS FOR THE CARE OF THE S....
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.... interpretating Chapter Note 4 of Chapter 4 of the CETA mats decision in the case of Collector of Central Excise v. Frozen Foods Pvt. Ltd., reported in 1992 (59) E.L.T. 279 (Tribunal) where also the heading was similarly worded using the term inter alia. The Tribunal found that in interpreting the Chapter Note, the principles of Nosciture a Sociis as laid down by the Supreme Court in the case of Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise, reported in 1990 (47) E.L.T. 491 (S.C.) can be applied. The products mentioned in Chapter Note 6 are all preparation of a kind used exclusively on the hair. Brilliantine is a cosmetic hair dressing, so also Pomade is a scented ointment for the hair, and the shampoo is usually a liquid or powder preparation for washing the hair. HSN Explanatory Notes under Heading 33.05 also say that preparations applied to hair on parts of the human body other than scalp are excluded, whereas under the HSN Explanatory Note under Heading 14.04 covering vegetable products not elsewhere specified or included, it is stated under a raw vegetable materials of a kind used primarily in dyeing or tanning that such materials may be untreated, dried, grou....
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....paration for application on the hands. In terms of Section Note 4 to Section VI, such beauty or make up preparations are to be classified only under the heading 3304 of tariff and not anywhere else in the Schedule. In terms of chapter note 3 to Chapter 33, also these goods have to be classified as per the use as indicated on the packing material. It is fact that though the Henna Powder in unit container could be used for colouring the hairs also, but the packing describes the use of the product being cleared as beauty or makeup preparation for decoration of the hands. In view of the specific description and use as is mentioned on the packing the classification under heading 3305 cannot be accepted. In the case of Henna Export Corporation referred, supra, the Henna Powder was described to be used for the purpose of colouring hairs and hence classified under the said heading 3305. In the present case when the same is used as beauty or make up preparation the same gets classified under heading 3304. Even in terms of HSN Explanatory Notes for Chapter Heading 3304, the test for treating the products as preparation classifiable under heading 3304 are satisfied. CBEC Circular 256/90/96-CX....
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....n to sustain the penalty imposed. Hon'ble Supreme Court has in case of Rajasthan Spinning Mills [2009 (238) ELT 3 (SC)] held as follows: "14. Sub-section 1A of Section 11A provides that in case the person in default to whom the notice is given under the proviso to sub-section 1 makes payment of duty in full or in part as may be accepted by him, together with interest under Section 11AB and penalty equal to 25% of the accepted amount of duty within thirty days of the date of receipt of notice then the proceeding against him would be deemed to be conclusive (without prejudice to the provisions of Sections 9, 9A and 9AA) as provided in the proviso to sub-section 2 of Section 11A. Sub-section 1A and the proviso to sub-section 2 were inserted with effect from July 13, 2006 and, therefore, have no application to the periods relevant to the two appeals. 15. Sub-section 2B of Section 11A provides that in case the person in default makes payment of the escaped amount of duty before the service of notice then the Revenue will not give him the notice under sub-section 1. This, perhaps, is the basis of the common though erroneous view that no penalty would be leviable if the escaped amou....
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....ave also been paid within thirty days of the communication of the order by which such increase in the duty takes effect - Explanation. - For the removal of doubts, it is hereby declared that - (1) the provisions of this section shall also apply to cases in which the order determining the duty under sub-section (2) of section 11A relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President; (1) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.] 17. The main body of Section 11AC lays down the conditions and circumstances that would attract penalty and the various provisos enumerate the conditions, subject to which and the extent to which the penalty may be reduced. 18. One cannot fail to notice that both the proviso to sub-section 1 of Section 11A and Section 11AC use the same expressions : "....by reasons of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules m....
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.... question which arises for determination in all these appeals is whether Section 11AC of the Central Excise Act, 1944 (in short the "Act') inserted by Finance Act, 1996 with the intention of imposing mandatory penalty on persons who evaded payment of tax should be read to contain mens rea as an essential ingredient and whether there is a scope for levying penalty below the prescribed minimum. Before the Division Bench, stand of the revenue was that said section should be read as penalty for statutory offence and the authority imposing penalty has no discretion in the matter of imposition of penalty and the adjudicating authority in such cases was duty bound to impose penalty equal to the duties so determined. The assessee on the other hand referred to Section 271(1)(c) of the Income Tax Act, 1961 (in short the IT Act') taking the stand that Section 11AC of the Act is identically worded and in a given case it was open to the assessing officer not to impose any penalty. The Division Bench made reference to Rule 96ZQ and Rule 96ZO of the Central Excise Rules, 1944 (in short the "Rules') and a decision of this Court in Chairman, SEBI v. Shriram Mutual Fund & Anr. [2006 (5) SCC 361] and....
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....ended period of limitation and the onus is on the revenue to establish that the extended period of limitation is applicable. Once that hurdle is crossed by the revenue, the assessee is exposed to penalty and the quantum of penalty is fixed. It is pointed out that even if in some statues mens rea is specifically provided for, so is the limit or imposition of penalty, that is the maximum fixed or the quantum has to be between two limits fixed. In the cases at hand, there is no variable and, therefore, no discretion. It is pointed out that prior to insertion of Section 11AC, Rule 173Q was in vogue in which no mens rea was provided for. It only stated "which he knows or has reason to believe". The said clause referred to wilful action. According to learned counsel what was inferentially provided in some respects in Rule 173Q, now stands explicitly provided in Section 11AC. Where the outer limit of penalty is fixed and the statute provides that it should not exceed a particular limit, that itself indicates scope for discretion but that is not the case here." 23. The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of Section 11AC woul....
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....§Ù„تجزئة الاقصى الØلا على كل الضرائب ) Manufactured, Packed & Marketed by S. Narendrakumar & Co. 4/B, L.B.S.Marg, Vikhroli (W), Mumbai 400083. Registered Office: Krushal Centre, G.M. Road. Mumbai 400089. www.everestspices.com PRODUCE OF INDIA انتاج الهند HP0706 06/07 12/08 RS-4.00 Everest is the registered trademark of S. Narendrakumar & Co. अवरेसà¥à¤Ÿ मेंहदी पावडर इसà¥à¤¤à¥‡à¤®à¤¾à¤² का निरà¥à¤¦à¥‡à¤¶ : मेंहदी का à¤à¤°à¤ªà¥‚र रंग उà¤à¤¾à¤°à¤¨à¥‡ के लिठमेंहदी पावडर में चाय का पानी, इमली का पानी, नींबू के ....