TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 1620
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....ion No.11/2010-CE(NT) dated 27.02.2010. 2.2 On the basis of parameters furnished in declaration in Form-1 by the Respondent the Annual Capacity of Production (ACP) and Monthly Duty Liability (MDL) in respect of the machines installed and functional in the unit was determined under Rule 6 of the packing rules and appropriate order was passed by the Assistant Commissioner, Central Excise & Service Tax Division, Gorakhpur. Respondent was required to pay duty as determined and an intimation of monthly duty paid was submitted in Form-2 to the Superintendent under Rule 9 of the Packing Rules. During the scrutiny of Form-2 submitted for the months of May, 2015 to August, 2015 it had been observed that the respondent had short paid duty. 2.3 On the basis of information furnished in Form-1 dated 06.05.2015 & 13.05.2015 the ACP and MDL of the machine had been fixed. 2.4 In the form-I respondent has declared their products to be Chewing Tobacco, but the MDL Order dated 15.05.2015 was fixed in respect of 'Jarda Scented Tobacco' subject to confirmation received from CRCL, New Delhi. 2.5 Samples were sent to CRCL, New Delhi for examination of its constituents. It was confirmed vide report ha....
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....nts for finalization of its classification. (i) In their first report dated 07.10.2015 the Chemical Examiner reported that the contents of sample are in the form of brown cutpieces of vegetable matter (bits of leaves) with pleasant odour. It is mainly composed of tobacoo and flavoured. It does not contain lime. It has characteristics of Jarda Scented Tobacoo (ii) The re-test report dated 17.10.2016 shows that the contents are in the form of brownish dried cut pieces of leaves, having characteristics pleasant odour packed in unit packing. Each is composed of cut bits of tobacoo leaves, flavourant and added lime. Each is preparation containing chewing tobacco. Each is other than Jarda Scented Tobacco. It is evident from the above that the only change reported by the Chemical Examiner is presence of Lime in the sample, all other contents which are tobacco and fragrance/ odour have been re-confirmed. Merely addition of Lime in the product does not disqualify it from being Jarda Scented Tobacoo. B. The Chemical Examiner has decided the classification of the goods whereas their jurisdiction is limited to provide the contents/ingredients of the sample. In this regard, the various ....
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....ion and authority, as held in the judgments listed in paragraph B above. c. There is a clear demarcation in the tariff entries 24039910 and 24039930. The first covers the plain chewing tobacco without having been added any flavor/scent to it, whereas, against other tariff entry name of commodity is mentioned as Jarda scented tobacco. Thus, it clearly comes out that the product was manufactured by the party with addition of mixture other than the chewable tobacco and Lime as the same also contains "Pleasant Odour" as per both the CRCL New Delhi's reports dated 07.10.2015 and 17/21.10.2016. Such perfumery mixture in the tobacco product gives an exclusive smell to the product. In view of these facts, it has been established that the tobacco products manufactured by the party are scented tobacco which cannot be called as 'BCT' and there remains no doubt that these tobacco products are Jarda Scented Tobacco'. It is also observed that the general rules for the interpretation of First Schedule to the Central Excise Tariff Act, 1985 wherein some principles have been prescribed for classification of goods contained in the said Schedule to the Tariff Act. To classify the ....
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.... (Capacity Determination & Collection of Duty) Rules, 2010 does not empower the officer to change the classification of the goods. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 For dropping the demand, impugned order records as follows:- "30. It has been alleged in the impugned show cause notice that the party is engaged in manufacture of Jarda Scented Tobacco/ Chewing Tobacco, classifiable under tariff heading 24039930/24039910 of the First schedule to the Central Excise Tariff Act, 1985. Jarda Scented Tobacco/ Chewing Tobacco is a notified goods manufactured under the Packing Rules read with Notification No.11/2010-C.E.(N.T.) dated 27.02.2010 as amended and on the basis of parameters furnished in declaration in Form-1 by the party, the annual capacity of production (ACP) and Monthly duty liability (MDL) in respect of the machines installed and functioning in the unit was determined under Rule 6 of the packing rules and appropriate order were passed by the Assistant Commissioner, Central Excise & Service Tax Division, Gorakhpur. The party was required to pay the duty as determined and an intimation o....
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....ff Act, 1985 and manufactured under the packing rules and were liable to pay duty as determined by the department under Rule 6 of the packing rules or the product manufactured by the party were chewing tobacco falling under the chapter sub heading 24039910 attracting central excise duty as per notification no. Notification No. 11/2010-C.E.(Ν.Τ.( dated 27.02.2010 as amended. (ii) Whether the party is liable to pay differential duty as alleged to have been short paid during the period from May, 2015 to Aug, 2015? (iii) Whether the demand is liable to be confirmed and recovered from the party under section 11A of Central Excise Act, 1944 read with Rule 19 of the Packing Rules, 2010 as amended? (iv) Whether Interest at the applicable rate is liable be demanded and recovered from them under Section 11AA of Central Excise Act, 1944 read with Rule 9 & 19 of the Packing Rules, 2010, on the demanded duty amount? (v) Whether Penalty is liable to be imposed upon the party under the provision of Rule 25 of the Central Excise Rules, 2002 read with rule 19 of the packing rules for contravention of rule 6, 7 & 9 of the packing rules and Rule 6 & 8 of the Central Excise Rules, 2002.....
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....y although I do not find any provision of fixing liability provisionally, but at the stage of adjudication it is out of purview to ascertain as under what rules or provisions the duty liability fixed provisionally. But it is undisputed that the MDL was fixed considering the goods being manufactured as other than what was declared by the party. 37 The office of the Assistant Commissioner, Central Excise & Service Tax Division-Gorakhpur drew the samples of tobacco products manufactured by the units of the party during May, 2015 to August, 2015 for testing from the CRCL, New Delhi to ascertain the correct classification of the manufactured product for leviability of Central Excise Duty under Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 as amended. 38. The samples were sent to the CRCL New Delhi for testing. Out of these samples the samples drawn from unit no. XIV & XV on 03.06.2015 were returned un-tested by giving remark of rejected on the back of envelope. Then duplicate samples of tobacco products drawn from unit no. XIV & XV on 03.06.2015 were sent to the CRCL, New Delhi for testing. In the mean time, t....
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..... In response, the Assistant Commissioner (Tech), Central Excise, Allahabad vide their letter dated 10.06.2016 has communicated to the office that the Commissioner of Central Excise Allahabad has accorded the technical approval for re-testing of duplicate samples. The same was Communicated to the CRCL, New Delhi and duplicate/triplicate sample were again sent to them for re-testing vide letter dated 24.06.2016. 42. The Joint Director, CRCL, New Delhi vide their letter dated 17/21.10.2016 has reported that "Each of the six samples is in the form of brownish, dried cut pieces of leaves.. having characteristics pleasant odour packed in unit packing. Each is composed of cut bits of tobacco leaves, flavourant and added lime. Each is preparation containing chewing tobacco. Each is other that Jarda scented tobacco." 43. Now, in backdrop of above, I find that initially the party declared his product to be manufactured as 'chewing tobacco' falling under chapter heading 24039910. Though the Assistant Commissioner at the time of fixing ACP and MDL considered the subject goods as "Jarda scented tobacco' falling under the chapter sub heading 24039930, but certainly had doubts th....
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.... Samples Retesting of samples Central Silk Technology Research Institute in its first test report opining that imported mulberry raw silk of yam is of 2A grade, while on retesting changing its opinion to hold said goods of 3A grade Since samples were drawn from same consignment and there is no conditionality attached to it, no ground for not following second test report more so when Department itself had initially accepted it. Appeal dismissed REPRESENTED BY: Ms. R.K. Sekna Reshma, for the Appellant. Shri Joseph Prabhakar, for the Respondent. [Judgment per: V. Ramasubramanian, J.). This appeal was filed by the Revenue under Section 130 of the Customs Act, 1962 and it was admitted on 30-7-2010 on the following two substantial questions of law. Whether the "(i) order of the CESTAT upholding the qualified and conditional second test report is correct as against the unqualified/unconditional report done based on the testing of samples by competent testing authorities in India under Section 144 of the Customs Act, 1962? and Whether the (ii) order of the CESTAT upholding the qualified and conditional second test report is correct ignoring the fact that the second test itself....
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....the Tribunal. 9. Accordingly, the questions of law are answered against the Revenue Department. The civil miscellaneous appeal is dismissed. No costs. Consequently, the above MP is also dismissed. Further, in the case of MADHU WOOL SPINNING MILLS Versus UNION OF INDIA AND OTHERS, reported in 1983 (14) E.L.T. 2200 (Bom.), it was held by the Hon'ble High Court of Bombay observed as "Samples tests showing different results - Effect. Merely because the different analysis of samples showed different conclusions, it is not permissible to select that conclusion which suits the authorities to levy the duty. [para 8]" In another case of HKT MINING PVT. LTD. Versus COMMISSIONER OF CUSTOMS, VISAKHAPATNAM, reported in 2010 (259) E.L.T. 735 (Tri. Bang.) the Hon'ble CESTAT, SOUTH ZONAL BENCH, BANGALORE in its Final Order No. 1212-1213/2010, dated 2-9-2010 in Appeal Nos. C/173-174/2009 held No dispute that retest granted and result communicated as Fe content 61.0%, entitle assessee of benefit Department's plea for remanding matter to adjudicating authority or Commissioner (Appeals) No useful purpose be served by remanding matter Following decision in 2001 (132) E.L.T. 10 (S.....
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....classification of the goods to have characteristics of the samples through report after retesting. They concluded that the samples were of Chewing Tobacco other than Jarda Scented Tobacco. The submission made in the appeal by the revenue that CRCL had determined the classification of the products is without any basis. The opinion furnished in respect of the samples tested is the basis for arriving at the findings recorded in the impugned order. 4.5 Revenue have not challenged the retest report furnished by CRCL which clearly shows that the tested goods were other than Jarda Scented Tobacco. Board has also vide Circular No 30/2017-Cus dated 18.07.2017, in case where the sample test reports, during test and retest varies have clarified as follows: "f. The competent authority shall consider the results of the re-test without prejudice to the results of the first test. In case there is a variation in the results of the first test and the re-test, the competent authority shall take the decision relying upon either of the tests specifying the grounds in writing for the decision so taken. In case the competent authority is unable to decide whether to rely upon the first or the re-test ....