TaxTMI 
TaxTMI 
2026 (6) TMI 394
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....hewing tobacco" with interest under section 11AA and penalty under section 11AC of the Central Excise Act. 2. Excise Appeal No. 52254 of 2024 has been filed by M/s. R. R. Jhiriwal to assail that portion of the order dated 31.01.2022 passed by the Additional Director General that imposes a penalty upon him under rule 26 of the Central Excise Rules, 2002 [the Central Excise Rules] 3. Excise Appeal No. 52255 of 2024 has been filed by Robin Jhiriwal, Partner of the appellant, to assail that portion of the order dated 31.01.2022 passed by the Additional Director General that imposes a penalty upon him under rule 26 of the Central Excise Rules. 4. Excise Appeal No. 52256 of 2024 has been filed by Rajan Jhiriwal, Partner of the appellant, to assail that portion of the order dated 31.01.2022 passed by the Additional Director General that imposes a penalty upon him under rule 26 of the Central Excise Rules. 5. The appellant had started manufacturing two products, namely, zarda and supari with brand name "MAMA" at two separate units, namely, M/s. Rajan Jhiriwal and M/s. R.R. Jhiriwal. 6. The issue that arises for consideration in these appeals is whether the goods manufactured....
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....e 6(2) of the Capacity Determination Rules classifying MAMA zarda brand manufactured by the appellant under CETI 2403 99 10 as chewing tobacco. 15. On 04.03.2015, the Superintendent Central Excise sent a report to the Deputy Commissioner regarding the visit to the factory premises of the appellant for verification of the declaration dated 02.03.2015 submitted by the appellant in Form I and again clarified that the final product of the appellant is correctly classified under CETI 2403 99 10 and does not merit classification under CETI 2403 99 30 as claimed by the appellant. 16. On 04.03.2015, the Superintendent Central Excise also directed the Regional Officer to collect sample of raw material and send it to CRCL for correct nomenclature of the product. 17. On 16.03.2015, the Superintendent Central Excise forwarded the samples of the product drawn from the factory of the appellant under a Panchnama dated 16.03.2015 to the Deputy Commissioner and also stated that the final product of the appellant is in powder form and till then the tobacco preparation of the appellant manufactured in powder form should be classified as chewing tobacco under CETI 2403 99 10. 18. On 17.03.....
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....inished goods manufactured and sold by the Noticee i.e. whether it is Zarda Scented Tobaco falling under CETH 24039930 or Chewing tobacco falling under CETH 24039910.***** I find that the CRCL report clearly mentions that the finished mixture 'is composed of Tobacco, slaked lime & odoriferous substances (flavorant/scented compound). I find that the Noticee had admitted during investigations that they were using ingredients like clove, cardamom, Kulanjan, Menthol, Perfume and other flavours. The CRCL report establishes that the finished mixture contains flavor and scent. ***** Thus as per CRCL report there is presence of both flavor and scent in the finished mixture which confirms that perfume/scent was added to the product. ***** 22.5. I find that the samples of finished mixture manufactured by the Noticee were drawn on 21.01.2016 during search proceedings and therefore have a surprise element involved. Bottles of liquid perfume were recovered during search. The present proceedings under the impugned notice are on the basis of search conducted and samples drawn during search and test reports of the said samples. It would be illogical to rely on samples drawn ten m....
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....obacco attracted different rates of duty at different times under Notifications and details are as follows: Period Chewing Tobacco Zarda Scented Tobacco Relevant Notification Position in the present case (appellant is engaged in manufacturing of Chewing Tobacco) Prior to 01.03.2015 Same Same Notification No. 16/2010-C.E., dated 27.02.2010 from 01.03.2015 24.15 lakhs per packing machine per month with speed up to 300 or 38.64 lakhs per packing machine per month with speed of 301 and above 27.05 lakhs per packing machine per month Notification No. 5/2015-C.E., dated 01.03.2015 Up to March 2015, appellant had 8 machines up to the speed of 300 and thus paid duty on rate of 24.15 With effect from 30.04.2015 24.15 lakhs per packing machine per month with speed up to 300 or 38.64 lakhs per packing machine per month with speed of 301 and above 27.05 lakhs per packing machine per month with speed up to 300 or 82.11 lakhs per packing machine per month with speed of 301 and above Notification No. 25/2015-C.E., dated 30.04.2015 For April 2015, appellant had 2 machines up to the speed of 300 and thus paid duty at the rate of 24.....
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....ther: other: chewing tobacco February 2016 24039910 Other manufactured tobacco and manufactured tobacco substitutes - Homogenised or reconstituted tobacco; tobacco extracts and essences - other: other: chewing tobacco March 2016 29. It would also be relevant to refer to the determination of classification of the products by the department. In this connection, the following orders issued by the department would show that the department itself classified the product under CTI 2403 99 10: S. No. Particulars Date CETI 1. Order No. 06/2012-13 effective from 01.08.2012 02.08.2012 24039910 2. Order No. 8/2012-13 effective from 14.09.2012 14.09.2012 24039910 3. Order No. 9/2012-13 effective from 01.10.2012 03.10.2012 24039910 4. Order No. 10/2012-13 effective from 01.02.2012 03.12.2012 24039910 5. Order No. 11/2012-13 effective from 01.04.2013 28.03.2013 24039910 6. Order No. 02/2013-14 effective from 01.10.2013 27.09.2013 24039910 7. Order No. 03/2013-14 effective from 01.12.2013 03.12.2013 24039910 8. Order No. 04/2013-14 05.02.2014 24039910 9. Order No. 06/201....
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....nsidered. 33. It seen that with effect from 30.04.2015, the excise duty on zarda scented tobacco had increased and that is why the show cause notice had called upon the appellant to pay the differential excise duty. The records indicates that in all the ten ER-1 returns that were filed by the appellant from August, 2012 upto March, 2016, the classification of the product manufactured by the appellant was shown under CETI 2403 99 10 as chewing tobacco. No objection was ever raised by the department from August, 2012 upto March, 2016. It is also seen that the department itself had issued various orders from 2012 upto 2016, in which the classification of the product manufactured by the appellant, was shown under CETI 2403 99 10. 34. In Tara Chand Naresh Chand, the department had filed an appeal to assail the order dated 28.03.2018 passed by the Tribunal. The assessee had claimed that product manufactured by it was "zarda scented tobacco" classifiable under CETI 2403 99 30 but the department claimed that it was "chewing tobacco" falling under CETI 2403 99 10. The Supreme Court noticed that the stand of the assessee had been consistent that the product manufactured by it is classi....