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TMI Blog2009 (11) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... l excise duty @ 30% Adv., amounting to Rs. 2,06,762/-. Accordingly, show cause notice was issued on 3-12-98 which was adjudicated and was confirmed. Commissioner (Appeals) set aside. Held that- Henna powder and shikakai powder are directly applied to hair after mixing with water, hence not comparable to present items. Thus not classifiable under sub-heading 3305.90 of Central Excise Tariff Act, 1985. - E/1500/2008 - A/2406/2009-WZB/AHD, - Dated:- 5-11-2009 - S/Shri B.S.V. Murthy, Member(T) and Ashok Jindal, Member (J) REPRESENTED BY: Shri Avinash Thete, SDR, for the Appellant. S/Shri Alok Bhartwal and Amrish Neenia, Advocates, for the Respondent. [Order per: B.S.V. Murthy, Member (T)). - M/s. M.M. Khambatwala, 20/25, City ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner, Div-I, Ahmedabad-I vide OIO No. 04/AC/DA/2008 dated 14-2-2008 held that the said goods are classifiable under S.H. No. 3305.99 and found that Notification No. 140/83-C.E., dated 5-5-1983 is not applicable to the appellant and the value of the goods is not cum duty price and confirmed the duty along with interest. 5. Being aggrieved by the OIO No. 04/AC/DA/2008 dated 14-2-2008, the appellant filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) allowed the appeal and set aside the OIO and noted in his findings that the masala pudies contained vegetable powder and the critical raw materials of the masala pudies are kapoor kachali, nagarrooth, bawcho, oil, colour essential oil etc., and all raw materials are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of M/s. Heena Export Corporation v. Collector reported at 1993 (67) E.L.T. 907 (Tribunal) was not applicable as shikakai powder was used directly on the hair. He submits that the product is clearly covered by Chapter Note 6 of the Heading and the decision of the Tribunal in respect of heena powder. Further, he submits that the product is similar to heena powder and in the case of heena powder it has been held that the same is classifiable under 3305 of CETH. 7. Learned advocate on the other hand submits that the masala pudi manufactured by them and the product M37 are entirely different and he drew our attention to the difference between the two products. He also submits that the Chapter Note 6 of Chapter 33 gives the examples of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dyes (in whatever form), shampoos, whether or not containing soap or organic surface active agents." 10. The assessee manufactured and cleared the products namely (1) Amla ki pudi, (2) Brabmi ki pudi, (3) Dudhi ki pudi, (4) Bhrungraj ki pudi, (5) Mehdi ki pudi, (6) Dupel I pudi. These products were known as masala pudies in common parlance and these products were said to contain powder of amla, bhrami, mehndi leaves, kapoor kachli, nagar moth, spices etc. and were to be mixed with coconut oil, ground nut oil or any other oil after boiling to prepare perfumed hair oil as noticed from the literature/label affixed on the packing. 11. The department's contention is that this product is comparable to another product manufactured by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absorbed in oil. After filtration, residue is found which is thrown away. 6. It is made of chemicals. 6. Made of herbs, fruits, leaves, roots of various vanaspati received from natural sources. 7. In the case of M37 decided by the Tribunal the issue was of classification between chapter 3302.90 and 3305.90 7. The dispute in the present case is classification between chapter 1401 and 3305.99. 12. M 37 is to be straightaway mixed with oil and applied to the hair. Whereas the present products as per the instructions have to be used as under: "These pudies are to be mixed with coconut oil, groundnut oil or any other oil. After 24 hours this mixture is to be boiled and thereafter perfumes to be added to pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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