2008 (9) TMI 745 - AT - Central Excise

Summary

Issues:
Classification dispute between "chewing tobacco" and "zarda scented tobacco" under Heading 2403 99 10 and 2403 99 30, respectively.

Analysis:
The dispute in the present stay petitions revolves around the classification of the appellant's product as either "chewing tobacco" under Heading 2403 99 10 or "zarda scented tobacco" under Heading 2403 99 30. The appellant argued that their product should be classified as "chewing tobacco" based on the literature produced, while the Revenue contended for classification as "zarda scented tobacco." The duty amount was demanded based on the classification under Heading 2403 99 30, leading to a confirmed demand of around Rs. 10 crores against the appellant.

The appellant's representative highlighted a similar case where the Delhi Bench of the Tribunal had granted a stay order classifying the goods under Heading 2403 99 10, supporting the appellant's claim. The appellant argued that even if assessed under Section 4, the duty amount should be reduced to around Rs. 5.30 lakhs considering discounts and cum-duty price benefits. Financial hardship was not pleaded by the appellant, as they had already deposited Rs. 5.5 lakhs.

The Revenue argued that the appellant initially claimed the classification as "zarda scented tobacco" under Heading 2403 99 30 and later changed their claim to "chewing tobacco." The Revenue contended that the appellant should not be allowed to change the classification without demonstrating financial hardship, insisting on the deposit of the dues.

The Tribunal emphasized that the dispute should be decided based on the correct heading covering the goods, irrespective of the appellant's initial claim. Referring to a similar case, the Tribunal noted that the absence of the word "chewing" in Heading 2403 99 30 indicates that it may not cover the goods described as "chewing tobacco." The Tribunal held that the stay order passed by the Delhi Bench should apply to the present case, emphasizing equal treatment for identically situated assessees during interim relief.

Consequently, the Tribunal allowed the stay petitions unconditionally, emphasizing the importance of consistent treatment for similarly situated assessees and rejecting the argument of financial difficulty as a ground for directing the deposit of duty amounts, especially when other assessees in similar circumstances had been granted unconditional stays.