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TMI Blog2010 (10) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Avinash Thete, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. - The dispute in the present appeal relates to the correct classification of the following three products being manufactured by the appellant for M/s. Hindustan Lever Ltd. (a) Lux Body Wash (b) Lux Skin Care Moisturizing Body Wash (c) Lux Skin Care Deep Cleaning Body Wash Whereas the appellants have claimed the classification of the same as falling under Heading 3402.90, Revenue s claim of classification is under Heading 3307.39. Accordingly demand of duty of Rs. 28,20,347/- stands confirmed against the appellant along with imposition of penalty of identical amount in respect of clearances affected by them during the period October 2000 to February 2002, by way of issuance of a show cause notice dated 28-3-03. The appellants have assailed the impugned orders on merits as also on limitation. 2. After hearing both the sides duly represented by Shri V.S. Sejpal and Ms. H. Aparna, learned advocates appearing for the appellants and Shri Avinash Thete, learned DR appearing for the Revenue, we find that the description and method of use shown on the bottles/outer pack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no chemical reaction takes place during the process. On being asked regarding the use of the said variants of Lux Body Wash, he stated that the said products are used for Bath for human beings. The moisturizing body wash has double moisturizing action, goes deeply into the skin pores and helps keep essential moisture in leaving it moisturized and silky. The Deep Cleansing body wash have active cleansers and Glycerin, penetrates the skin to clean it of excess oils, dirt and grime and keeps it clear and beautiful. 4. As is seen from above, it stands clarified that the products in question do not contain any soap but are organic surface active agents. In fact, this fact does not stand disputed by the Revenue. 5. At this stage we may reproduce the two contending entries for better appreciation. At this stage we may reproduce the two contending entries for better appreciation. 34.02 - Organic surface-active agents (other than soap); surface-active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations, whether or not containing soap. 3402.10 ------------------------------------ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration, Washing Preparations and Cleaning Preparations whether or not containing soaps (g) That if a product is an preparation based on Surface Active Agent and if it is used for washing purposes then it would be specifically covered under Heading No. 34.02. Accordingly all the three products which are specially formulated of Organic Surface Active Agents with the specific end use of Washing of skin and human body would be covered under the said Heading 34.02 of CETA, 1985. (h) That all the products under reference also meet with the technical requirements of Note-3 to Chapter 34 of CETA, 1985; (i) That in view of the Chapter 3 to Chapter 34 all the three products are Preparations Based on Organic Surface Active Agents in liquid form for use for washing of skin under Heading No. 34.02, the Department ought to have carried out the specified tests through the Deputy Chief Chemist for substantiating the applicability of said Chapter Note-3 and to confirm whether appellants claim was correct or not; (j) That the basic use and properties of all the three products under reference are for washing and cleaning of skin and human body which is achieved by combination of Organic Surf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partly made of Organic Surface Active Agents in the form of Liquid of cream and which are put up for retail sale for washing of the skin. (q) That on perusal of Chapter-33 it would be observed that the products referred in the exclusion clause i.e. in Chapter Note 1(c) to Chapter 34 are specifically covered under sub-heading 33.07 and the scope of the said sub-heading 33.07 excludes preparations consisting wholly or partly of organic surface active agents in the form of Liquid or cream and put up for retail sale for use in washing of skin; (r) That on further referring to the scope of sub-heading 33.07 enumerated at Page No. 512 of Harmonised Commodity and Coding System and provisions of clause (III) are reproduced below : (iii) Bath preparations, such as perfumed bath salts and preparations for foam baths, whether or not containing soap or other organic surface active agents. Preparations consisting wholly or partly of organic surface active agents, in the form of liquid or cream, whether or not put up for retail sale for use in washing the skin, are classified in heading 34.02 . (s) That in view of the HSN their products under reference are specifically excluded from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion clause-2, Explanatory Note-2, Heading No. 34.02 which have been added in February 1998 are applicable for products used for washing of the skin. Probably this would cover items like hand wash, liquids etc. He further observed that between a specific term Bath Preparations and Clean for Washing the Skin bath preparation is more specific term and the later one is a general term. As such he preferred the specific term and held the products as classifiable under Heading No. 3307.89. 11. After hearing both the sides we find that the findings of Commissioner (Appeals) are more or less self contradictory. Having taken note of the amendment in the HSN explanatory notes, he has correctly arrived at a finding that the inclusion clause added in February 1998 are applicable for products used for washing of the skin. However he has limited the said use only to the washing of the hands. We really fail to understand that the skin of the hands is skin whereas the skin of the other body parts has not been held to be skin by the appellate authority. There is no justification for limiting the scope of such use only to the washing of the skin of the hands and not the other body parts. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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