2019 (6) TMI 1600

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....of 6% Central Excise duty by availing the benefit as mentioned at Serial No. 23 of Notification No. 02/2011-CE dated 01.03.2011. It was also observed that during the manufacture of said "lal dant manjan" an intermediary product namely, "dant mukta" comes into existence which has also been cleared by availing the said concessional rate of duty as per the aforesaid Notification treating it to be classifiable under 33061010 only. Alleging that the said intermediary product, i.e., "dant mukta" is neither sold as tooth power nor is sold in retail packages that the aforesaid show cause notice dated 11.01.2018 was served upon the appellant proposing the duty of Rs. 30,57,860/- to be recovered from the appellant under Rule 8(3)A of Central Excise Rules, 2002 read with Section 11A of Central Excise Act, 1944 alongwith the interest at the appropriate rate and the proportionate penalty. The said proposal was initially confirmed vide the Order-in-Original No. 007 dated 08.08.2018 and was upheld by Commissioner (Appeals) vide the Order under challenge. Being aggrieved, the appellant is before this Tribunal. 2. We have heard Shri Amit Jain, learned advocate for the appellant and Shri V.B. Jain,....

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....-Mumbai) to impress upon that matter pertaining to classification is an interpretational issue and as such the malafide intention to evade the duty cannot be enforced upon. Department is not entitled for invoking the extended period of limitation. The Appeal, therefore, is prayed to be allowed. 4. Learned Authorised Representative, on the other hand, has justified the order under challenge. It is impressed upon that the Commissioner has rightly distinguished the case of Dabur India from the present case. Also, it is submitted that for availing the benefit of Notification, the product should be the 'tooth powder' falling under the heading 33061010. But 'dant mukta' is not the tooth powder rather it is merely a raw material/ intermediary product for manufacture of lal dant manjan, tooth powder. Thus, it neither can be called as tooth powder nor can be classified under 33061010. Impressing upon no infirmity in the Order, Appeal is prayed to be dismissed. 5. After hearing both the parities and observing the entire record, we are of the opinion as follows: 5.1 The only question to be adjudicated in the present case is whether the product "dant mukta'" used by the appellant is classif....

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....ds within the purview of excise. The said observation was based on the clarification under Notification No. 01/2005 dated 24.02.2005 and a subsequent Trade Circular No. 808 dated 25.02.2005 clarifying that the amendment of 2004 is merely a technical change of transition from six digit to eight digit classification with no substantive change to be brought in. Thus, we are of the opinion that the said amendment has been taken as a wrong basis to distinguish the present case from Dabur India (supra) case. 6. Further, the word 'including' as used in eight digit tariff for Chapter Note of 3306 has been described by Hon'ble Apex Court in the case of Commercial Taxation Officer, Udaipur Vs. Rajasthan Taxchem Ltd., 2007 (209) ELT 165 (S.C.) by holding that when the word 'include' is used in words or phrase, it must be construed as comprehending not only such things as they signify according to their nature and impact but also those things which the interpretation clause declares, they shall include. Seen from the perspective of Rules of Interpretation; Rule 2(a) of the Interpretative Rules clearly mentions that any reference in a heading to goods shall be taken to include a reference to t....

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....hakti" has been held to be akin to tooth powder way back in 2000, Revenue is not allowed to back out from the stand taken about "dant mukta" and "dant shakti" to be the similar products. Seeing from this angle also "dant mukta" is nothing but a tooth powder classifiable under 330610 (six digit regime) and under 33061010 (8 digit regime). It is worthwhile to mention here that the test report dated 19.09.2000 issued by the Pharmacopoeial Laboratory for Indian Medicine and the subsequent letter dated 27.09.2000 of the Assistant Drugs Controller to the Ld. Superintendent, Land Customs Station, Raxaul, Bihar categorically state that the sample of 'dant mukta' was dark brown, rusty coloured fine powder and was a 'dant manjan' i.e. tooth powder. In view of the said letter, it is submitted that the issue stands conclusively settled in favour of the appellant that the product in question i.e. 'dant mukta' is actually a tooth powder falling under tariff item 33061010. 8. Coming to the issue of applicability of Notification No. 02/2011-CE dated 01.03.2011, it is observed that the said Notification gives benefit of reduction in excise duty to tooth powder. From the above discussion it has alr....