Delhi High Court - Orders
T D Industries Private Limited vs Commissioner, Central Goods And ... on 30 October, 2023
Author: Yashwant Varma
Bench: Yashwant Varma
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10011/2023
T D INDUSTRIES PRIVATE LIMITED ..... Petitioner
Through: Mr. Vivek Kohli, Sr. Adv. with
Mr. Nalim Talwar, Mr.
Ashwani Sharma, Ms. Nikita
Maheshwari, Ms. Bhavya
Bhatia, Advs.
versus
COMMISSIONER, CENTRAL GOODS AND SERVICES
TAX COMMISSIONERATE DELHI WEST & ORS.
..... Respondent
Through: Mr. Aditya Singla, SSC with
Mr. Mahesh Agarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
ORDER
% 30.10.2023
1. The Court notes that despite the orders dated 31 July 2023 and 04 September 2023, the respondents have been unable to provide instructions to Mr. Singla, learned counsel who appears on their behalf.
2. Mr. Kohli, learned senior counsel has additionally drawn our attention to the judgment dated 20 October 2023 passed by the Supreme Court in Commr. of Cen. Exc. Ahmedabad vs. Urmin Products P. Ltd. and Others [2023 SCC OnLine SC 1385] and other connected matters including Civil Appeal No.3596/2023. It was pointed out to us that the present petitioner is a franchisee of the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 21:26:12 appellant in Civil Appeal No.3596/2023. Insofar as the said manufacturer is concerned, the dispute whether the product was liable to be classified as "chewing tobacco" or "jarda/jarda scented tobacco", has ultimately been answered in favour of the appellant as would be evident from paragraphs 128 to 130 of the judgment of the Supreme Court which is extracted hereinbelow:-
"128. Based on the said report the Department by communication dated 27.04.2015 informed the assessee, the product being manufactured by the assessee is classifiable under Chapter sub- heading 2403 9910 as „chewing tobacco (other than filter Khaini)‟ and as such called upon the assessee-respondent to show cause as to why the Form No. 1 dated 05.03.2015 should not be rejected as the product manufactured by the respondent-assessee fell in the category of „chewing tobacco (other than filter Khaini)‟ and not under sub-heading 2403 9930 - „zarda/jarda scented tobacco‟. Accordingly, the assessee started submitting Form No. 1 declaring the product manufactured by it as „chewing tobacco‟. This Court has consistently held the common parlance test continues to be one of the determinative tests for the classification of a product. In Commissioner of Central Excise v. Shri BaidyanathAyurved chewing tobacco, (2009) 12 SCC 419, this Court has held as under:
"49. The primary object of the Excise Act is to raise revenue for which various products are differently classified in the new Tariff Act. Resort should, in the circumstances, be had to popular meaning and understanding attached to such products by those using the product and not to be had to the scientific and technical meaning of the terms and expressions used. The approach of the consumer or user towards the product, thus, assumes significance. What is important to be seen is how the consumer looks at a product and what is his perception in respect of such product. The user's understanding is a strong factor in determination of classification of the products.
61. In the matters of classification of goods, the principles that have been followed by the courts--which we endorse-- are that there may not be justification for changing the classification without a change in the nature or a change in the use of the product; something more is required for changing the classification especially when the product remains the same. Earlier decision on an issue This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 21:26:12 inter partes is a cogent factor in the determination of the same issue. The applicability of maxim res judicata pro veritateaccipitur in the matters of classification of goods has to be seen in that perspective."
129. Even the report of the Chemical Examiner clearly reflects that it is „chewing tobacco‟. In fact, it is the Revenue that has been taking consistently inconsistent stand. In the first instance when Form No. 1 was filed by the assessee declaring the product „Mahapasandzarda scented tobacco‟, the Department drew samples from the factory premises, obtained the CRCL Report, and called upon the assessee to reclassify its product as „chewing tobacco‟ under CET SH 2403 9910 and accordingly the Form No. 1 was filed by the assessee and duty paid in tune with the declaration filed. It is only after Notification No. 25 of 2015 came to be issued revising the duty payable on „zarda scented tobacco‟ that fresh samples were drawn, and the Revenue started singing a new tune, and thus called upon the assessee to declare the product manufactured by it as „zarda scented tobacco‟. In the light of communication dated 27.04.2015 by the Revenue addressed to the assessee and calling upon the assessee to classify its product as „chewing tobacco‟ and the same having been complied by the assessee it is too late in the day for the Department to take a contrary stand.
130. The order of the tribunal has taken into account the aforestated aspects to arrive at a conclusion that the declaration filed by the assessee is just and proper, which does not suffer from any infirmity either on facts or on law calling for our interference. Hence, the appeal filed by the Department deserves to be rejected."
3. In view of the aforesaid, we call upon the competent authority of the respondent to place an order on the record of these proceedings dealing with the prayer of the petitioner for refund of the differential duty on or before the next date fixed.
4. It is further clarified that in case the aforesaid direction is not complied with, this matter shall proceed ex parte and on the state of the record as it exists today.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 21:26:13
5. List again on 12.12.2023.
YASHWANT VARMA, J.
RAVINDER DUDEJA, J.
OCTOBER 30, 2023 neha This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/11/2023 at 21:26:13