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2019 (6) TMI 805 - HC - Central ExciseClassification of goods - Eco Bath Wipes - whether the aforesaid product i.e. Eco Bath Wipes has to be classified under CETH 34029091- washing preparations (including auxiliary washing preparations) and cleaning preparations having a basis of soap or other organic surface active agents or under CETH33073090- Other bath preparations others ? - case of appellant is that petitioner in assailing the impugned SCN is that the same has been issued without conducting retest - principles of natural justice. HELD THAT - It is submitted that the request for retest which has been made by the writ petitioner vide the aforesaid letter dated 08.02.2017 which has been sent to the jurisdictional Superintendent will be forwarded to the jurisdictional Assistant Commissioner of Central Excise and a retest will be conducted. Writ petitioner also on instructions undertakes to pay the prescribed fee forthwith. Besides paying prescribed fee all other attendant requirements which are necessary for retest shall be adhered to by the writ petitioner. A copy of the retest report will be furnished to the writ petitioner as expeditiously as possible and the writ petitioner shall thereafter send his reply to the impugned SCN - The aforesaid exercise of retest shall be completed as mentioned supra as expeditiously as possible but in any event within two months from the date of receipt of a copy of this order. The same shall be served on the writ petitioner within three (3) weeks there from and the writ petitioner shall send his reply to the impugned SCN within 30 days from the date of service of the retest report. The retest has to be done in accordance with the Basic Excise Manual which has been relied on. Thereafter respondent shall take a decision on the impugned SCN within 30 days from the date of receipt of reply to the show cause notice (as per calendar drawn up supra) in accordance with law - petition disposed off.
Issues: Classification of product under Central Excise Act, 1944
The judgment delivered by the High Court of Madras pertains to the classification of a product, "Eco Bath Wipes," under the Central Excise Act, 1944. The key issue revolves around whether the product should be classified under CETH 34029091 or CETH 33073090. The dispute arises from a test report obtained by the respondent, leading to a Show Cause Notice (SCN) being issued without conducting a retest as requested by the petitioner. The petitioner challenges the SCN on the grounds that a retest was not conducted, citing the Basic Excise Manual's provisions on retesting samples. The Central Government Standing Counsel argues that the manual is a guideline and not mandatory, but agrees to conduct a retest as per the manual's procedure. The Court directs the retest to be completed within two months, with the respondent required to make a decision on the SCN within 30 days of receiving the retest report. The judgment begins by highlighting the background of the case, where the petitioner manufactures "Eco Bath Wipes," a hospital product used by patients unable to bathe conventionally. The central issue is the classification of this product under the Central Excise Act, specifically whether it falls under washing preparations or other bath preparations. The Court notes that a test report was obtained by the respondent, leading to the issuance of a Show Cause Notice (SCN) without conducting a retest as requested by the petitioner. The petitioner challenges the SCN, arguing that it was issued without a retest, as per the provisions in the Basic Excise Manual. The petitioner's main contention is that the impugned SCN was issued without conducting a retest, as requested by the petitioner. The petitioner relies on the Basic Excise Manual, specifically paragraph 8.8, which outlines the procedure for retesting samples. The Central Government Standing Counsel argues that the manual is a guideline and not mandatory. However, in light of the case's trajectory, the Standing Counsel agrees to conduct a retest as per the manual's provisions. The Court directs the retest to be completed within two months, with the respondent required to make a decision on the SCN within 30 days of receiving the retest report. In response to the petitioner's challenge regarding the impugned SCN, the Central Government Standing Counsel contends that the Basic Excise Manual is a guideline and not binding. However, in the interest of fairness, the Standing Counsel agrees to conduct a retest as per the manual's procedure. The Court orders the retest to be completed within two months, with the respondent mandated to decide on the SCN within 30 days of receiving the retest report. The Court emphasizes that the retest must adhere to the provisions of the Basic Excise Manual for a fair resolution of the classification issue.
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