Customs, Excise and Gold Tribunal - Calcutta
Commissioner Of Customs And Central ... vs Sant Product Ltd., Maxcare ... on 22 January, 2004
Equivalent citations: 2004(171)ELT109(TRI-KOLKATA)
ORDER Archana Wadhwa, Member (J)
1. The dispute in the present appeal of the Revenue relates to the correct classification of a product "Dant Mukta" imported by the appellant from Nepal and to be used as a raw material for the manufacture of "Lal Dant Manjan". Whereas the Commissioner (Appeals) has accepted the Respondent's contention of classification of the said product under chapter heading 33.06 of CTA, 75 and CETA 1985, the Revenue has contended in their appeal that the same is classifiable under heading 3003.39.
2. After hearing both sides we find that the Commissioner (Appeals) has followed the earlier order of the Tribunal in the case of Dabur India Vs. C.C.E, Meerut reported in 2036 RLT 639 CEGAT where in the Tribunal held that identical product "Dant Shakti" used in the manufacture of "Lal Dant Manjan" is properly classifiable under heading 3306. While holding so the Tribunal in para 7 observed as under :
The Appellants have mentioned in the Memorandum of Appeal that the impugned product does not contain garlic powder which contributes cleaning properties to "Lal Dant Manjan". This fact itself will not make the impugned product as an Ayurvedic medicine in view of the judgment of the Supreme Court in Shree Baidyanath Ayurved Bhavan's case, supra wherein the Supreme Court held that "In interpreting statutes like the excise Act the primary object of which is to raise revenue and and for which purpose various products are differently classified resort should not be had to the scientific and technical meaning of the terms and expressions used but to their popular meaning". The Apex Court also observed that in the absence of any evidence on record to show and prove that the Common man who uses this Dant Manjan daily to clear his teeth considers that Dant Manjan as a medicine and not a toilet requisite, that "the Tribunal rejected the claim of the appellant holding that ordinarily a medicine is prescribed by a Medical practitioner and it is used for a limited time and not everyday unless it is so prescribed to deal with a specific disease like Diabetes". The ratio of the judgment, to our opinion, squarely applies to the present matter before us as there is no evidence on record to prove that the common man considers the impugned product as a medicine. The Learned Counsel has also contended that Note 2 to Chapter 33 does not apply as the product is supplied in 25 kg. bags and no label is attached thereto. We observe from the memorandum of appeal that Dant Shakti is sold in 25 kg. HDPE woven sacks which is a package in itself and a paper label indicating product name and other statutory information. The Label describes the contents, compositions, and use of the product. In view of this the provisions of Note 2 to Chapter 33 will be applicable and as the product is akin to tooth powder and following the ratio of Supreme Court's decision is Shri Baidyanath Ayurved Bhavan's case the impugned product will be classifiable Heading No. 33.06 of the Tariff. Accordingly, the appeal filed by the Appellant is rejected".
3. The Commissioner (Appeals) while allowing the appeal filed by the Respondent has held as under :
"From above it is explicitly clear that subject goods are identical to the goods as dealt with by Hon'ble Tribunal in the above mentioned case and as such no scope is left to hold any contrary view from the view held by the Hon'ble Tribunal. Judicial discipline envisages that lower authorities are bound to follow the ratio of judgments pronounced by the higher authority or courts unless the same is challenged before the appropriate higher appellate authority. Moreover, in the aforesaid judgment the views of the department regarding classification of identical goods has been upheld. Since, additional duty of customs is leviable as on like article if produced/manufactured in India, the impugned goods would be classifiable under chapter heading 3306 of CETA, 1985.
The adjudicating authority's refusal to accept the contention of the appellant when the aforesaid order of CEGAT was brought to his notice on the ground that Dabur India for a considerable period did not accept the above mentioned decision is not valid and it can't be made a ground for denial of benefit to them if admissible in law. Reliance by adjudicating authority to the reference of goods in "Bhava Prakash" and on judgments in case of Henna Export Corporation is also not valid at this stage, as Hon'ble Tribunal has already considered the same in its order. Observation on statutory principle of retail nature of packing for goods covered under chapter 33, relying on Notification No. 18/98-CE(NT) dated 02.06.1998 is also not correct in view of description of goods in other sub-headings of chapter 33. Further, it is not held by adjudicating authority that impugned goods can also be used for purpose other than as tooth powder. Therefore, in view of judgments cited by the appellant and Board's circulars referred in said judgments, I rule out classification of "Dant Mukta" under chapter 30 and hold that these are classifiable under chapter heading 33.06 of CETA, 1985.
4. The Revenue in their memo of appeal has reiterated the same ground which was placed before the Tribunal, in the case of Dabur. They have also contended that the "Dant Shakti and "Dant Mukta" are two different products and have produced following table in support of their contention :
INPUT DANT SHAKTI DANT MUKTA PIPLI 21.50% 13.13% SUNTHI 08.20% 13.38% BLACK PEPPER - 13.13% TOMOR SEED 09.65% 07.88% HARIT AKI ROASTED 08.18% 06.69% CLOVE LEAF OIL 03.60% 02.93% CAMPHER 16.09% 13.13% KASNI POWDER 03.12% 02.55% MENTHA OIL 00.75% 00.61% SUGANDHIT DRAVYA 00.06% 00.52% GARRIC POWDER 30.98% 3.13%
5. As such the Revenue has contended that since the ingredient black pepper is absent in Dant Shakti whose classification has been decided by the Tribunal, the same cannot be adopted for Dant Mukta. They have also contended that in any case and in any view of the matter the benefit under Notification No. 06/2000-CE dated 01.03.2000 is not available even though the classification under heading 3306.10 is accepted, in as much as the said product cannot be considered as Tooth Powder.
6. Shri R. Swaminathan, learned consultant appears for the Respondents and submits that the Commissioner (Appeals) has followed the earlier order of the Tribunal in the case of Dabur where the Revenue was taking a contrary stand. He submits that Commissioner of Customs, Patna vide his subsequent orders has held the identical product i.e. Dant Mukta as classifiable under heading 3306.10 and not attracting any duty w.e.f. 1/3/2000. He placed on record the above decision of the Commission. Our attention has also been drawn to a letter dated 4th March, 2003 written by Sr. Technical Officer (Tariff unit) to Chief Commissioner of Customs (Preventive) which is to the effect that Dant Mukta and Dant Shakti are identical products and it may not be proper for the Department to change its earlier stand only because of Revenue consideration. The letter further, says that the legal sanctity of court judgments must be given due respect. Therefore, the product may be classified under head 3306 in line with the Tribunal's judgment and the earlier stand before the Tribunal. We have considered the submission made by both the sides. We find that the Commissioner (Appeals) has only followed the earlier order of the Tribunal in the case of Dabur India. We find the appellant's claim of classification under chapter 33 was rejected by the Tribunal and the Revenue's stand of the same being properly classifiable under Head 3306 was accepted. The Revenue has not brought any new facts or new ground on record to take different view than the one taken by the Tribunal earlier where the Deptt.'s own stand was accepted We also take note of the fact that the Revenue's contention that Dant Shakti does not contain block pepper is factual incorrect in as much as the Tribunal in para 6 of their judgment in the case of Dabur India has shown black pepper as one of the ingredients of Dant Shakti. Even the letter addressed by the Sr. Technical Officer accepts that Dant Mukta and Dant Shakti are identical products both of which are used as raw materials for the manufacture of Lal Dant Manjan. The Commissioner (Appeals) has also discussed that the Superintendent Customs Station, Raxaul, Bihar sent sample of Dant Mukta to the Asst. Drugs Controller of India, Kolkata and it was informed that the sample is a Dant Manjan or Tooth Powder.
7. We also take note of the orders passed by the Commissioner of Customs, Patna holding that such products is classifiable under head 3306. In view of the foregoing we find no merits in the Revenue's contention that the product is not classifiable under heading 3306.10.
8. The Revenue has raised an alternative plea that even if Dant Mukta is held to be classifiable under heading 33.06, the same would not be entitled to the benefit of Notification 06/2000-CE dated 01.03.2000 in as much as the same cannot be called a Tooth Powder. However, we do not find any merits in the above contention of the Revenue in as much as the goods has been classified under head 3306.10 as detailed before by the Tribunal in the case of Dabur India. However, we decline to pass any order of the noted benefit as the same was not the subject of appeal before Commissioner (Appeals) which has only decided upon the classification of the product. All the appeals filed by the Revenue are being disposed by a common order as the issue involved is identical.
9. In view of the foregoing the appeals filed by the Revenue rejected.