2015 (7) TMI 1034 - SC - Central Excise

Classificsation of Close-Up Whitening - toothpaste or not - Classification under Chapter sub-heading 3306.10 or 3306.90 - Held that - There is no dispute that most of the ingredients of the product Close-Up Whitening are the same which are used in the manufacture of the other products, namely, Close-Up Red/Blue/ Green, which are treated as toothpaste by the assessee itself. There are, however, additional ingredients used in the manufacture of the product in question, which are accepted by the Revenue also and noticed above. Apart from additional presence of Silicon Agglomerate and Bluer Agglomerate of specified percentage and absence of Tri Chloro 2 hydroxy Diphenyl Ether, there is a presence of uniformity dispersed blue speckles in Close-Up Whitening. There is also additional step of addition of silica agglomerates . In fact, it is this ingredient which felicitates at getting uniformity dispersed speckles. It is on the basis of these additional factors, one has to determine as to whether Close-Up Whitening loses the character of toothpaste and assumes the characteristics of another product, namely, dental cleaner. There is no evidence on record placed by the Revenue which would reflect that the product in question is known to the consumers as toothpaste. - that Close-Up Whitening is not a toothpaste but a dental cleaner. We are convinced that this finding is perfectly just and proper - Close-Up Whitening dental cleaner is not a toothpaste but other form of dental hygiene and, therefore will have to be classified under sub-heading 3306.90 as a consequence. - Decided against Revenue.

Issues Involved:
1. Classification of 'Close-Up Whitening' under the correct sub-heading of the Excise Tariff.
2. Whether 'Close-Up Whitening' is a toothpaste or a dental cleaner.
3. Validity of the Commissioner's reliance on HSN Notes for classification.
4. Evidence regarding market perception of 'Close-Up Whitening'.
5. Tribunal's findings on the classification of 'Close-Up Whitening'.

Detailed Analysis:

1. Classification of 'Close-Up Whitening' under the correct sub-heading of the Excise Tariff:
The primary issue revolves around whether 'Close-Up Whitening' should be classified under Chapter sub-heading 3306.10 (toothpaste) or 3306.90 (other dental hygiene products) of the Excise Tariff. The Revenue argued that 'Close-Up Whitening' falls under 3306.10, while the assessee contended it should be classified under 3306.90.

2. Whether 'Close-Up Whitening' is a toothpaste or a dental cleaner:
The Revenue's position was that 'Close-Up Whitening' is essentially a toothpaste, as the differences in ingredients do not alter its fundamental character. The Tribunal, however, concluded that 'Close-Up Whitening' is a dental cleaner, not a toothpaste. This conclusion was based on the presence of additional ingredients (Silicon Agglomerate and Bluer Agglomerates) and a different manufacturing process involving more stages and time compared to regular toothpaste.

3. Validity of the Commissioner's reliance on HSN Notes for classification:
The Commissioner relied on HSN Notes to classify 'Close-Up Whitening' under sub-heading 3306.10, interpreting 'dentifrices' to include toothpaste. The Tribunal found this approach flawed, noting a significant difference between the Indian statute and the Harmonized Commodity Description and Coding System. The Tribunal emphasized that the Indian tariff specifically lists 'tooth powder' and 'toothpaste' under 3306.10, whereas HSN's 'dentifrices' is more generic.

4. Evidence regarding market perception of 'Close-Up Whitening':
The Tribunal found no evidence from the Revenue that 'Close-Up Whitening' was known to consumers as toothpaste. The Tribunal's finding that 'Close-Up Whitening' is not recognized as toothpaste but as a dental cleaner was supported by the lack of contrary evidence from the Revenue.

5. Tribunal's findings on the classification of 'Close-Up Whitening':
The Tribunal's decision was based on several points:
- The differences in ingredients and manufacturing processes between 'Close-Up Whitening' and regular toothpaste.
- Expert testimony from Mr. N.H. Bijlani, who differentiated between toothpaste and dental cleaners.
- Historical classification of similar products under 3306.90 when the duty rates were higher.
- Registration of the product as a dental cleaner by the Food and Drug Authorities (FDA), not as toothpaste.

Conclusion:
The Supreme Court upheld the Tribunal's decision, agreeing that 'Close-Up Whitening' is not a toothpaste but a dental cleaner. Consequently, it should be classified under sub-heading 3306.90. The appeals were dismissed, confirming that 'Close-Up Whitening' does not fall under the toothpaste category for excise duty purposes.

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