Custom, Excise & Service Tax Tribunal
Raj Oil Mills Ltd vs Commissioner Of Central Excise on 16 May, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.
Appeal No. E/376,377,378,379,386,795,796,797,798/2011-Mum,
E/270, 1649, 1650, 1651, 1652, 1938/2012-Mum
(Arising out of Order-in-Original No. 14/Commr/M-II/10 dated 09/03/2011,
OIO No. 27/KLG/Th-II/2010 dated 29/10/2010,
OIO No. 27/KLG/Th-II/2010 dated 29/10/2010,
OIO No. 27/KLG/Th-II/2010 dated 29/10/2010,
OIO No. 27/KLG/Th-II/2010 dated 29/10/2010,
OIO No. 14/Commr/M-II/10 dated 09/03/2011,
OIO No. 14/Commr/M-II/10 dated 09/03/2011,
OIO No. 14/Commr/M-II/10 dated 09/03/2011,
OIO No. 14/Commr/M-II/10 dated 09/03/2011,
OIO No. 30/PKA/COMMR/Th-II/2011 dated 29/1/011,
OIA No. US/542 to.545/M-II/2012 dated 06/09/2012,
OIA No. US/542 to.545/M-II/2012 dated 06/09/2012,
OIA No. US/542 to.545/M-II/2012 dated 06/09/2012,
OIA No. US/542 to.545/M-II/2012 dated 06/09/2012,
OIA No. 93/NG/COMMR/Thane-II/2012 dated 25/10/2012,
passed by the Commissioner of Customs & Central Excise )
For approval and signature:
Honble Mr. S.S. Kang, Vice President
Honble Mr. P.K.Jain, Member (Technical)
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1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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Raj Oil Mills Ltd.
Azamkhan F Lohani
Shaukat Suleman Tharadra
Abdulla Musla
Rashid Ismail Tharadra
The Indian Vegolis & Chemicals Co. Pvt. Ltd.
Anand Kumar Chandhok
Vinay Tarachand Chawla
Kamani Oli Industries Pvt. Ltd.
M/s. Raj Oil Mills Ltd.
The Indian Vegoils & Chemicals Co. Ltd.
Kamani Oil Industries Pvt. Ltd.
Vinay Tarachand Chawla
Anand Kumar Chandhok
M/s. Raj Oil Mills Ltd.
:
Appellant
VS
Commissioner of Central Excise,
Thane-II, Thane-II, Thane-II,
Thane-II, Thane-II, Mumbai-II,
Mumbai-II, Mumbai-II, Mumbai-II,
Thane-II, Mumbai-II, Mumbai-II,
Mumbai-II, Mumbai-II, Thane-II
:
Respondent
Appearance
Shri J. H. Motwari, Advocate
Shri Prakash Shah Advocate
Shri Prasad Paranjape, Advocate for Appellant
Shri K.L. Goyel Commissioner (A.R) and
Shri Navneet, Additional Commissioner (A.R.) for respondent
CORAM:
Mr. S.S. Kang, Vice President
Mr. P.K. Jain, Member (Technical)
Date of hearing : 16/05/2013
Date of decision : 16/05/2013
ORDER NO.
Per : S.S. Kang
Common issue is involved in these appeals in respect of classification of Pure Coconut Oil cleared by the appellants in the packing of 200ml and less. Therefore the appeals are being taken up together.
2. Appellants M/s. India Veg Oil & Chemicals Co. Pvt. Ltd. undertaking the activity are of repacking of coconut oil from bulk pack to retail pack bearing brand name CoCopure. Appellants are clearing the repacked coconut oil by claiming classification under Chapter 15 of the Central Excise Tariff. Show cause notices were issued to the appellant demanding duty by classifying Coconut Oil cleared in the packing of 200ml or below bearing brand name CoCopure by classifying the same under Chapter 33 of the Central Excise Tariff as preparation for hair.
3. Similarly other appellants are manufacturing Coconut Oil and clearing the same in different packing. The revenue wants to classify the Coconut Oil which are cleared in the packing of 200ml or less under Chapter 33 of the Central Excise Tariff whereas the appellants are claiming classification under Chapter 15 of the Central Excise Tariff.
4. The adjudicating authority confirmed the demands along with interest and also imposed penalties on the manufacturer and also imposed penalties on individuals. The adjudicating authority also held that the products in question are wrongly classified by the appellants with intent to evade payment of duty. Therefore the goods are liable for confiscation the adjudicating authority has also imposed redemption fine and penalty.
5. The contention of the appellant who are manufacturer is that appellants are engaged in the manufacture of Coconut oil which is edible oil and the same were cleared in different packing. In respect of packing which are more than of 200ml oil. The Revenue accepted classification under Chapter 15 of the Excise Tariff. The Revenue wants to classify Coconut Oil cleared under packs of 200ml or less under Chapter 33 of the Central Excise Tariff as preparation for hair. The appellants produced the sample of 200ml or less than 200ml packs and submitted that it was specifically mentioned on the packing that the Coconut oil is edible grade oil. The contention is that as edible grade Coconut oil which is packed in more than 200ml packing is classifiable under Chapter 15 of the Central Excise Tariff Act the same when packed in packages of 200ml or less cannot be classified under Chapter 33 of the Tariff. It is further submitted that therefore, the same cannot be held to be preparation for hair and classifiable under Chapter 33 of the Central Excise Tariff.
6. The contention of the appellant India Veg Oil & Chemicals Co. Pvt. Ltd. is that the demand is confirmed by treating the appellant as deemed manufacturer as per Chapter Note 5 to Chapter 15 of the Central Excise Tariff, on the ground that packing repacking and re-labeling amounts to manufacture and in support of the same revenue is relying upon the Boards Circular dt. 3.6.2009 whereby the board has clarified that Coconut edible oil which is packed in packs of 200ml or less is to be classifiable under Chapter 33 as preparation for use on the hair.
7. Appellants relied upon the decision of the Tribunal in the case of Capital Technologies Ltd. & Others Vs. Commissioner of Central Excise & Service Tax Tirupati reported in 2011-TIOL-775-CESTAT-BANG to submit that the Tribunal after taking into consideration the Board Circular and the earlier decision of the Tribunal in the case of Aiswarya Industries Vs. Commissioner of C. Ex. Pondicherry reported in 2009 (235) E.L.T. 544 (Tri. Chennai) held that edible Coconut Oil packed and sold in the packing of capacity of 200ml and less is classifiable under Chapter Heading 15 of the Central Excise Tariff and not under Chapter 33 of the Tariff. The appeal filed by the Revenue against this order is dismissed by Honble Supreme Court vide Order dt. 23.1.2012. The contention is that as the issue is already settled in favour of the appellants and therefore the impugned orders are not sustainable.
8. Revenue relied upon the finding of the lower authority and submitted and placed reliance upon the Board Circular dt. 3.6.2009. The Ld. Commissioner (A.R.) appearing for the Revenue also relied upon the observations made by the Honble Delhi High Court in the case of Jain Exports Pvt. Ltd. Vs. UOI reported in 1987 (29) ELT 753 (Del.) to submit that as per specification Coconut oil standing by itself would include both edible and industrial variety of coconut oil. The Ld. Commissioner (A.R.) submitted that it is well known that coconut oil is not at all used as edible oil in very large part of our country and it is used only in a very small part of our country as an edible medium. It is also submitted that the coconut oil of packing of 200ml or less are brought and sold in the market as hair oil. Therefore, the impugned order is rightly passed.
9. We find that in these appeals the issue is of classification of Coconut oil which is packed and sold in the packages of capacity of 200ml and less. There is no dispute regarding edible coconut oil packed in the packing which are more than 200ml. The revenue is accepting the classification under Chapter 15 of the Central Excise Tariff. In respect of the edible Coconut Oil which is packed in the packages of more than 200ml. Revenue is classifying the packing of 200ml or less of the Coconut Oil as preparation for hair and classifying the same under Chapter 33 of the Central Excise Tariff.
10. We find chapter 15 of the Excise Tariff covers Animal or Vegetable fats and oils. Chapter 33 of the Tariff covers cosmetics or toilet preparation. We find that the edible Coconut oil who packed in the packing of more than 200ml. the same is classifiable under Chapter 15 of Excise Tariff and Revenue is not disputing this fact. When the same edible oil is packed in the packing of 200ml of less Coconut oil be considered as preparation for use on hair in the absence of any evidence that the composition of both type of oils are different.
11. Further we find that in the case of Capital Technologies Ltd. & Others (supra) Tribunal after relying upon the earlier decision in the case of Aiswarya Industries (supra) and after taking into consideration the Board Circular dt. 3.6.2009 held that edible grade coconut oil repacked in smaller sachets is classifiable under Chapter 15 of the Central Excise Tariff Act and not under 33 of the Central Excise Tariff Act. We find that the label of the product in question in the present appeal are similar to the label on the product which were under consideration in the case of Capital Technologies Ltd. & Others (supra) for ready reference the label which were under consideration in the case of Capital Technologies Ltd. & Others and the same are reproduced below:
13. The learned JCDR submits that the evidences unearthed by the Revenue in the current case in the form of packaging specifications, Nihar Coconut Oil Hazard and Environmental Assessment Report, Hair Regional Innovation Centre Report, etc, would not carry the case of the Revenue any further, as it is undisputed in this case that the products which were put to be marketed by the appellant has the following labels.
New NIHAR NaturalsTM STRENGTH OF NATURE Double filtered, 100% pure, Nihar Naturals Coconut Oil Contains the wholesome Nourishment of coconuts to give You the Strength of Nature in every drop.
Nihar Naturals is a 100% pure, edible grade coconut oil Key Ingredient Coconut Oil BEST BEFORE 15 MONTHS FROM MANUFACTURE Net Volume: 500ml(457.5g)
14. Revenue has not disputed the above contents, which were indicated on the packages which were sold or put to the market by the appellant after repacking the same for M/s. HLL. On mere perusal of the above reproduced contents on the packages, it is seen that there is clear indication that the goods are of edible grade coconut oil. It is also noted that the assessee has always represented to the market, the product as an edible grade coconut oil and not as a hair care oil. It is also to be noted that Revenue has not produced any contrary evidence that the products are not represented to market as edible grade coconut oil. In our considered view, Revenue did not refute the fact of marketing of the said product as edible grade coconut oil by adducing any contrary evidence.
In the present case the product which is manufactured and cleared by M/s. Raj Oil Mills Ltd. label reads as under:
Complete Nourishment.
Cocoraj is extracted from the best quality Copra, its natural goodness and essential purity Makes cocoraj a premium quality edible oil.
Similarly the product of M/s. India Veg Oil & Chemicals Co. Pvt. Ltd. labels reads as under:
Cocopure is a premium edible oil, expelled from the finexl coconuts.
It has no additives therefore, 100% natural.
12. We find that the facts of the present case are similar to the facts of the case which were under consideration in the case of Capital Technologies Ltd. & Others (supra). The appeal filed by the Revenue against the decision of the Tribunal is dismissed by Honble Supreme Court vide order dt. 23.1.2013. The Civil Appeal order reads as under;
Delay condoned.
The Civil Appeal is dismissed on facts only.
13. In view of the above discussion, we find that the ratio of the decision of the Tribunal in the case of Capital Technologies Ltd. & Others (supra) is fully applicable to the facts of the present appeals. Hence, the impugned orders are set aside and appeals are allowed.
(Dictated in court) (P.K. Jain) Member (Technical) (S.S. Kang) Vice President Sm ??
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