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TMI Blog2012 (11) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that these products merit classification as ‘Cosmetics or toilet preparations’ falling under Heading No. 3306.10 - In view of the higher abatement claim the appellant was liable to pay differential duty - product classified as ‘Cosmetics or toilet preparations’ falling under Heading No. 3306.10 of the First Schedule to the Central Excise Tariff Act, 1985 – appellant directed to make pre-deposit - E/1660/2010-Mum - S/949/2011-WZB/C-II(EB) - Dated:- 19-12-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri S.S. Gupta, CA, for the Appellant. Shri Y.K. Agarwal, Addl. Commissioner., for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. The appeal and stay application are di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t these products merit classification as Cosmetics or toilet preparations falling under Heading No. 3306.10 of the Central Excise Tariff Act, 1985 and the appellant is eligible for abatement only to the extent of 35% of the MRP under Notification No. 2/2006-C.E.(N.T.), dated 1-3-2006. In view of the higher abatement claim the appellant was liable to pay differential duty of Rs. 2,04,421/- for the period July 2007 to March 2008 and, accordingly, a show-cause notice dated l6th June, 2008 was issued to the appellant. The notice was adjudicated by the jurisdictional Asst. Commissioner who vide Order dated 31-3-2009 classified the product manufactured by the appellant as Cosmetics or toilet preparations falling under Heading No. 3306.10 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of his contention. 5. The learned A.R. appearing for the Revenue contends that these products are Cosmetics or toilet preparations meriting classification under Heading 3306.10 of the Central Excise Tariff Act, 1985 and reiterates the findings of the lower adjudicating and appellate authorities. 6. We have carefully considered the rival submissions. 7. We find that in the packages of the products viz. Hydent Gel, Hydent-K, Triguard tooth paste, Triguard mouthwash, Dentocare liquid, Senseal-K, Metrodent Oral Gel, Senseal-KF, Foaming Oral Gel, Stomat Gum Astringent, Frident Mouthwash, Frident Plus mouthwash, Frident - KF Desensiting Oral Rinse, Tanocare Liquid, there is no indication what-so-ever that these products require Do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth paste and tooth powder) and denture fixative pastes and powders. Thus it covers preparations for oral or dental hygiene even if such preparations may contain small amount of drugs. That by itself cannot take them out of the purview of Chapter 33 and make it classifiable under Chapter 30 as patent and proprietary medicines . 7.2 A Larger Bench of this Tribunal in the case of Shri Baidyanath Ayurved Bhavan v. CCE, Patna - 2002 (140) E.L.T. 459 (Tri.-LB) held that Dant Manjan Lal cannot be classified under Chapter 30 and merit classification under Heading 33.06 which covers the preparations for oral or dental hygiene even if Dant Manjan Lal has some minor curative or prophylactic ingredients and the Hon ble Apex Court also upheld t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m experts and persons from the trade showing that their product was known as drug in common and commercial parlance. In the case before us, no such evidence is forth-coming and as per description given in the packages of the products, except in two cases, it is not forth-coming that the product is a drug which needs prescription from a Doctor. 8. Thus, we are of the view that the appellant has failed to make a prima facie case for complete waiver of pre-deposit of the dues adjudged. Therefore, we direct the appellant to make a pre-deposit 50% of central excise duty adjudged within a period of four weeks and report compliance on 2nd February 2012. On such compliance, the balance of dues adjudged shall stand waived and recovery thereof stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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