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TMI Blog1996 (1) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... isional assessment ordered by the Assistant Collector. The Collector (Appeals) in these cases had held that the issue has not been finally decided by the Tribunal and therefore, the appeals were not maintainable. 3. From the records, we find that there are two appeals filed by the Collector in respect of M/s. Ram Swaroop Chaurasia Sons. These appeals are numbered as E/4617/91-D and E/4997/91-D. As these two appeals are against the same order of the Collector (Appeals), these two appeals are actually one appeal and therefore, have been disposed of together. 4. The facts, in brief, are that M/s. Gupta Tobacco and M/s. Durga Prasad Vidyasagar are engaged in the manufacture of goods which they described as branded chewing tobacco and marketed as Jhakara Tobacco. The appellants claimed the assessment of their product under Chapter Heading 2404.41 of Central Excise and Tariff Act, 1985. The appellants also indicated the ingredients of their product as supari, tobacco, lime, menthol etc. The Department disputed the claim for classification under Chapter Heading 2404.41 and sought to reclassify the product under Chapter Heading 2106.11 as Pan Masala. The Assistant Collector, Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the product was not classifiable under CH 2106.11 but was classifiable under CH 2404.41 as claimed by the respondents herein. Against this order, the Department have filed these appeals. 7. Shri P.K. Jain, the learned SDR appearing for the appellants submitted that Chapter Note 3 of Chapter 21 of the Schedule to the Central Excise Tariff Act, 1985, Pan Masala means any preparation containing betel nuts and anyone or more of said ingredients such as lime, katha, cardamom, copra, menthol, tobacco etc. He submitted that the respondents herein contested that proportion of tobacco in the product was sometimes more. The Ld. SDR argued that the proportion in which the betel nuts and or any one or more of other substances mentioned are to be contained is not stated and therefore, is not relevant. He submitted that only requirement of Chapter Note 3 of Chapter 21 was, the preparation must contain betel nut and any one or more of other ingredients and therefore, the product should be classified as Pan Masala. The Ld. SDR submitted that the ratio of the decision of the Tribunal in the case of Commission of Central Excise v. Gurmukh Singh reported in 1986 (25) E.L.T. 94 was not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was any dispute on this issue. He also submitted that there has been no change in the process of manufacture or use of ingredients and therefore, the ld. Counsel submitted that it was strange that the Department all of a sudden changed its mind and issued a show-cause notice. The ld. Counsel submitted that the manufacturers, dealers and consumers of Jakhara Tobacco deal in and use it in the form of tobacco. He submitted that with the introduction of new Tariff in 1986 Budget, the product manufactured by them was classified under Chapter Heading 24.04 and sub-heading 2404.41 of CETA, 1985; that there has been no change in the production of their Jakhara Tobacco nor is there any change in the Tariff; that no legal basis has been indicated anywhere as to why the classification is being changed from Chapter 24 to Chapter 21; that the product being manufactured by the respondents herein was different from Pan Masala; that the essential character of the product manufactured by the respondents is chewing tobacco; that in the common trade parlance, the product is known as chewing tobacco and not as Pan Masala; that the learned Collector (Appeals) had satisfied himself that in a pack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to part only of the items in a set, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. As against this, the Department had referred to and relied on Rule 1 which provides : The titles of Sections and Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the provisions hereinafter contained. On a careful reading of this Rule it is found that the Rule provides that the classification shall be determined in accrodance with the terms of headings and any relative Section or Chapter Notes. Now Note 3 of Chapter 21 defines Pan Masala as any preparation containing betel nuts and any one or more of other ingredients such as lime, katha, cardamom, copra, menthol and tobacco. Now, we find that this Chapter Note is very clear as to what should be classified as `Pan Masala . The respondents herein, at one point of time, submitted that it was a composite product and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment. A perusal of sub-section (1) of that Section shows that where any duty of excise has not been levied or short levied or short paid or erroneously refunded, the Central Excise Officer concerned may, within six months from the relevant date, serve notice on the person chargeable with that duty. This provision would clearly show that the period for which the demand could be made was only six months prior to the service of the notice. Now, in the present case, it has been found by the High Court and, in our opinion, rightly, that there was no suppression or mis-statement of facts or fraud by the appellant to which the alleged short levy or non-levy could be attributed. In fact, it is common ground that right from 1962 the appellant was filing classification lists containing the description of the items and showing them as liable to the payment of excise duty only, under Item No. 26AA(ia) and these lists were accepted and approved by the excise authorities. In these circumstances, we fail to see how it could be said that the appellant was guilty of any suppression or mis-statement of facts or collusion or violation of the provisions of Central Excises Act as contemplated und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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