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TMI Blog2010 (8) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute is as to whether during the period from November 2000 to 28th February 2001, Gutka was classifiable under sub-heading 2106.00 pertaining to Pan masala, as claimed by the Department or under sub-heading 2404.40 pertaining to "chewing tobacco and preparations containing chewing tobacco". In these cases, the Tribunal, relying upon Hon'ble Supreme Court's judgment in case of Kothari Products Ltd. v. Government of Andhra Pradesh reported in 2000 (119) STC 353 had held that during the period of dispute, the Pan masala containing Tobacco (Gutka) was classifiable under sub-heading 2404.40 of the Central Excise Tariff. The Department, however, filed appeals to Hon'ble Supreme Court against the Tribunal's orders under Section 35L(b) of the Central Excise Act, 1944. The appeals filed by the Department were disposed off by Hon'ble Supreme Court by a common order dated 8-12-09 [2010 (249) E.L.T. 322 (S.C.)] in respect of appeals No. 4226-4227/04, 7029-7030 7621/04 and 532 5019/05 by which the matters were remanded to the Tribunal for de-novo consideration of the matter in accordance with law. Hon'ble Supreme court while remanding this matter observed as under - "7. On going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Org. Chemicals Ltd. and M/s. Soami Industries, none appeared for M/s. Gahoi Foods Pvt. Ltd. and Shri Mahesh Kumar Gautam, Proprietor of M/s. Amar Jyoti Packers. As regards M/s. Kuber Tobacco Products Pvt. Ltd., they requested for adjournment but their request for adjournment was rejected and they were given time till 5th May 2010 for submitting written submission, which were submitted by Shri Kamal Jeet Singh and Shri Manish Pushkarna, Advocates on 4th May 2010. 2.2 The Appellants' counsels, while not contesting the classification of Gutka during the period of dispute under sub-heading 2106.00, pleaded that while during the period prior to November 2000, they were classifying the Pan masala containing tobacco (Gutka) under sub-heading 2106.00, it is only on the Department's instructions that in November 2000, they filed fresh declaration classifying the goods under Sub-heading 2404.40 of the Tariff, that while the goods covered by sub-heading 2106.00 attracted 16% Cenvat duty and 24% SED, the goods covered by sub-heading 2404.40 attracted 16% Cenvat duty + 24% SED + 10% AED (GSI)), that in spite of the goods having been classified under sub-heading 2404.40 from November 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he value determined under Section 4, resulting in short paying of duty and that in view of this, the duty demands had been correctly upheld by the CCE (Appeals). 3. We have carefully considered the submissions from both the sides and perused the records. The main point of dispute to be decided in this case is as to whether during the period of dispute i.e. during the period prior to 1-3-2001 "Pan masala containing tobacco", commonly known as "Gutka", was classifiable under Sub-heading 2106.00 pertaining to "Pan masala" or under Sub-heading 2404.40 pertaining to "chewing tobacco and preparations containing chewing tobacco." 4. Sub-heading 2106.00 and 2404.40 during the period of dispute were as under - "2106.00 Pan masala" 2404.40 chewing tobacco and preparations containing chewing tobacco." 4.1 During the period of dispute, there was Chapter note 3 to Chapter 21, which is reproduced below : "In this chapter, "Pan masala" means any preparations containing betel nuts and any one or more of the following ingredients, namely lime, katha (catechu) and tobacco, whether or not containing any other ingredients, such as cardamom, copra and menthol". 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ription shall be preferred to the heading providing a general description, we hold that during the period of dispute, the Pan masala containing tobacco i.e. Gutka was correctly classifiable under Sub-heading 2106.00 of the tariff. We find that while Hon'ble Supreme Court in the remand order has specifically observed that its judgment in case of Kothari Products Ltd. v. Government of Andhra Pradesh (supra) is not applicable to the facts of this case, Hon'ble Madras High Court in case of Dharampal Stayapal Ltd. v. Commercial Tax Officer, Colmbatore reported in 2009 (243) E.L.T. 179 (Mad.) has held that though w.e.f. 1-3-2001 "chewing tobacco" and "Pan masala containing tobacco" are in the same heading, "chewing tobacco" does not include and never included "Pan masala containing tobacco" and but for inclusion of "Pan masala containing tobacco" in Chapter 24 (sub-heading 2404.49) of Central Excise Tariff w.e.f. 1-3-01, it would have been covered by heading 2106.00. 4.5 In view of the above discussion, we hold that during the period of dispute, "Pan masala containing tobacco" i.e. Gutka was correctly classifiable under sub-heading 2106.00 of the Central Excise Tariff, not sub-he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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