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2019 (12) TMI 334

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.... 10 whereas according to the Revenue the correct classification of the product is "Jarda Scented Tobacco" falling under Chapter Heading 2403 99 30. In some of the appeals the declaration filed by the appellants stand changed from chewing tobacco to Zarda whereas in some of the appeals the demand stands confirmed against them, as a consequence of change in classification or the refunds of Excise duty paid by them stand rejected. 3. The goods manufactured by the appellants, with the aid of packing machine, installed in their factory are notified goods under Sub-section (1) of Section 3A of the Central Excise Act, 1944. With effect from 27/02/2010, the "Chewing Tobacco and unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rules, 2010" came into effect and the manufacturer of notified goods was required to file declaration in Form-1 in terms of the provisions of the said rules, declaring the number of packing machines installed in his factory so as to calculate duty for a particular month in respect of such operating packing machines and to pay the duty accordingly on monthly basis. As the appellant was the manufacturer of such notified goods, they....

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....assification inasmuch as in terms of the said rule, the proper officer is required to verify only the number of machines and the rotation per minute so as to fix the duty liability of the assessee. He further submits that reliance by the Lower Authorities on the decision of Orissa High Court in the case of Mishra Zarda Traders vs. State of Orissa 1988 (15) E.C.C. 124 holding their product as Zarda is not appropriate inasmuch as the said decision was in the context of Sales Tax whereas the dispute involved in the present appeal is vis-à-vis Excise duty. He further submitted that the Lower Authorities relied upon the test report of the sample obtained from their other unit under the name and style of M/s Dharampal Styapal Ltd. and no sample stand drawn from their stock. As such, reliance on the test report is vitiated piece of evidence and should be kept out of consideration. 6. On the other hand learned D.R. appearing for the Revenue reiterated the reasoning of the authorities below and submitted that each and every issue raised by the appellants stand effectively dealt with by the Lower Authorities and submits that inasmuch as the issue stand finally decided by the Hon'ble....

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....for BABA black deluxe Chewing Tobacco & Sample No.02(01/01 to 01/04) for loose finished Chewing Zarda, as described by the party, by the officers of Central Intelligence Unit, Central Excise, Meerut Zone, Meerut under Test Memo No.23/2015 and sent to Central Revenues Control Laboratory, Pusa, New Delhi for testing the product as to whether the said samples are Chewing Tobacco or Zarda Scented Tobacco. The Central Revenues Control Laboratory, New Delhi after testing the samples submitted the report for the two samples as under: (i) On opening the sample packet, a unit packing (printed plastic pouch) printed as "BABA Black" containing sample was found. The sample was in the form of yellowish brown coloured small cut pieces of vegetables matter (cut bits of leaves) along-with silver flecks having pleasant odour. It was composed of tobacco, silver flecks & fragrance. (ii) On opening the sample packet the sample was found in loose packing. The sample was in the form of yellowish brown coloured small cut pieces of vegetables matter (cut bits of leaves) along-with silver flecks having pleasant odour. It was composed of tobacco, silver flecks & fragrance. It had the characteristics ....

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....lant and we have not been shown that the two products i.e. one manufactured in the appellant's factory and another in Noida factory are different products. As such, we are of the view that the opinion of the chemical examiner holding that the product was composed of tobacco, silver flecks, fragrance and has the characteristics of scented tobacco would equally apply to the product being manufactured by the appellant. Further the statement of the General Manager admitting that they were adding silver and scented flavour to the other ingredients of their product manufactured and sold under the brand name of 'Baba' supports the opinion of the Chief Chemist, which cannot be dismissed lightly. As such, we hold that reference and reliance to the said test report of Chemical Examiner cannot be faulted upon. Further, though the chemical examiner has opined on the correct classification, which may not be within his jurisdiction, we note that Commissioner has primarily gone by the test report of the chemical examiner and has not adopted his opinion on classification straightaway without discussing the ingredients etc. and the two entries in the Excise Tariff. He has independently examined t....

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.... to direct modification in the plan or details of the part or section of the factory premises intended to be used by the manufacturer for manufacture of notified goods of different retail sale prices. Further Sub-rule 2 to the said rule is required to be considered for the purpose of calculation of his capacity determination or changes etc. in the number of machines. As such the cumulative reading of the said rule and language used therein leads us to conclude that the declarations filed in the said rule were for the purpose of determination of correct annual production capacity of a particular unit. While passing the orders in terms of the said rules, by way of approving the declarations, the correct classification of the product being manufactured by the assessee is definitely required to be examined. Without deciding on the correctness of the description of the goods declared by the party, it is not possible and practical as also legal to determine the capacity and assessee's liability to pay duty. As such, we find no merits in the above contention of the learned advocate. 11. We also note that classification under the main Heading 2403 places Chewing Tobacco as also Jarda Sce....

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....a flavoured Chewing Tobacco better known as 'Baba Zarda'. (v) As per the website wikimapia.org, Dharampal Premchand Ltd., well known by its world famous brand 'Baba Zarda'. 5.1.4.4 Further, the glossary of the term for tobacco and tobacco products (Third revision of IS 10335) ICS 65.160 for BIS use at para 2.185 had termed Zarda as "a chewing tobacco product made of highly scented and flavours tobacco flakes, chewed along with betel nuts &, paan (betel leaf)." The representative of the party during the submissions made on 16-02-2016 before the Deputy Commissioner, Central Excise Division II, Noida-I, himself admitted that the product in question was made by adding saffron and scented flavours along with other ingredients. Therefore, in view of the discussion above, I conclude that the Baba Flavoured Chewing Tobacco should be classified as Jarda Scented Tobacco falling under CETH No.24039930 of the Central Excise Tariff Act, 1985. As regards party's contention with regard to market parlance and market enquiry I find that when clear-cut classification of the goods is determinable with reference to the Central Excise Tariff, there is no requirement for any market enquiry or for....

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....Customs - Imports - Marble - Classification - There is no doubt that the general principle of interpretation of Tariff Entries occurring in a text statute is of a commercial nomenclature and understanding between persons in the trade but it is also a settled legal position that the said doctrine of commercial nomenclature or trade understanding should be departed from in a case where the statutory content in which the Tariff Entry appears, requires such a departure - In cases where the application of commercial meaning or trade nomenclature runs counter to the statutory context in which the said word was used then the said principle of interpretation should not be applied- Trade meaning or commercial nomenclature would be applicable if a particular product description occurs by itself in a Tariff Entry and there is no conflict between the Tariff Entry and any other entry requiring to reconcile and harmonise that Tariff Entry with any other Entry." Further in the case of Dunlop India Ltd. vs. Union of India And Others 2002-TIOL-647-SC-CU-LB it has been held that there is no estoppels in Taxation matters." 13. Apart from the above, we find that the issue of classification of 'Ba....