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TMI Blog2015 (8) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ular No.166/77/95-CX dated 29.12.95, the use of anti-oxidants as specified under Rule 59 of the Prevention of Food Adulteration Rules, 1955 will not alter the classification if they are meant only for preventing the rancidity of the oil. No evidence has been produced by the Department to show that the addition of anti-oxidants in coconut oil will make the same more suitable for use on hair. Denial of refund claim - Pre mature refund claim - Held that:- even if the writ petition filed by the appellant before Allahabad High Court, challenging the Board s Circular dated 3.6.2009, has now been transferred to the Apex Court where it is still pending and even if at some point of time, the appellant had addressed a letter to the Department that they would file refund claim as and when the matter is decided in their favour, in our view, they are at liberty to file the refund claim even though the matter is still pending before the Apex Court, more so, when the Hon ble Madras High Court in its judgement in the case of VVD & Sons (Pvt.) Ltd. (2014 (12) TMI 653 - MADRAS HIGH COURT) after considering the Board s Circular dated 3.6.2009 has quashed the same observing that the same is arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), CCE Vs. Dhiren Chemical Industries reported in 2002 (139) (ELT) 0003 (SC) ,CCE, Vs. Maruti Foam Ltd. reported in 2004 (164) ELT 394 (SC), wherein it was held that the circulars issued by the CBEC under Section 37 B of the Central Excise Act, 1944 is binding on the department even if it is against the statutory provisions. 2. On appeal being filed to the Commissioner (Appeals) against this order of the Asstt. Commissioner, the Commissioner (Appeals) vide order-in-appeal dated 27.08.2012 dismissed the appeal. The Commissioner (Appeals) also relied upon the Apex Court judgement in the case of Ranadey Micronutrients Vs. CCE (supra), wherein it was held that the circular issued by the Board are binding on the Department. 3. Against the above order of the Commissioner (Appeals), this appeal has been filed. 4. Shri B.L. Narsimhan, Advocate, ld. Counsel for the appellant, pleaded that the dispute is in respect of Coconut oil sold in the packings of 200 ml or less under the brand name Anmol , that from the photographs of the labels of the product placed on record, it would be seen that it is not marked as hair oil but is marketed as edible oil, that the label on the packing nowh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 (235) ELT 544 (Tribunal-Chennai) after taking into account sub-heading Entry no.33051990, as it stood w.e.f. 28.02.2005 held that coconut oil packed and sold in the packages of capacity ranging 50 ml to 500 ml (plastic bottles) and marketed as pure edible oil would be classifiable under heading 1513 as coconut oil and not as hair oil under sub-heading no.33051990 of the Central Excise Tariff, that this judgement of the Tribunal was followed by the Tribunal in its subsequent judgement dated 3.5.2011 in the case of Capital Technologies Ltd. Ors. Vs. CCE reported in 2011-TIOL-775-CESTAT-Bang, wherein an identical issue was involved and in this judgement, the Tribunal also held that coconut oil marketed in the packings of size of 50 ml and 100 ml. pouches, 100 ml. , 200 ml and 500 ml. pouches/containers would be classifiable as coconut oil under Heading No.1513 and not as Hair oil under heading no.3305, that the civil appeal filed to the Apex Court against this judgement of the Tribunal has been dismissed by the Apex Court vide order dated 23.2.2012, that the Tribunal in the case of Amardeo Plastics Industries Vs. Commissioner reported in 2007 (210) ELT 360 while examining the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sured doses or for retail sale are to be classified in those headings and in no other headings of this schedule, the Board by this Circular clarified that the coconut oil packed in the packigns of 200 ml or less would be classifiable as hair oil under hearing no.3305 of the Tariff, that the Board, thus, has merely clarified the amended Chapter Note 3 to Chapter 33 and Section Note 2 to Section VI, that Dabur India Ltd. Coconut Oil under the brand name Vatika is sold as Hair Oil for use on hair and which is supposed to contain various herbs, that this shows in the present case also that the product in question is meant to be used as hair oil and the same cannot be treated as edible coconut oil to the Heading No.1513. 5.1 Shri Khanna further pleaded that the appellant had filed a writ petition before the Allahabad High Court challenging the Board s Circular dated 3.6.2009 but, thereafter, filed an application before the Apex Court for transfer of the writ petition pending before the Allahabad High Court and the transfer petition is pending before the Hon ble Supreme Court. He pleaded that till the appellant s transfer petition is decided by the Apex Court, the Tribunal should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of dispute had paid duty at the rate applicable to the Heading 3305 under protest but subsequently they filed the refund claim, which had been rejected by the Asstt. Commissioner on the basis of the Board s Circular dated 3.6.2009 and also relying upon the various judgements of the Supreme Court holding that the Board s Circular are binding on the departmental officers and on the same ground, the Commissioner (Appeals) has upheld the order passed by the Asstt. Commissioner 8. The first objection of the Department is that the refund claim is pre-mature inasmuch as while paying duty under protest, the appellant had communicated to the Department that they have filed a writ petition before the Hon ble Allahabad High Court challenging the Board s Circular dated 3.6.2009 and they would file refund claim if the decision is in their favour and that since the writ petition filed by the appellant, on transfer application being filed by them before the Apex Court, has been transferred to the Apex Court where it is still pending, the refund claim filed by the appellant is pre-mature and should not be considered. We do not accept this plea of the Department, as even if the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 and arbitrary and unreasonable and for the same reason, the same has been quashed, the Board s Circular cannot be treated as binding on the Departmental Officers. Moreover the Kerala High Court in the case of Marico Ltd. (supra) has held that the circulars and departmental clarifications issued by the Department cannot operate when the field is occupied by decisions rendered by the Appellate Tribunal. In the present case, there are a series of decisions of the Tribunal wherein the Tribunal after examining the Tariff Heading No.1513 pertaining to Coconut Oil and Heading No.3305 which covers Hair Oil and the relevant Chapter and Section Notes examined the question of classification of Coconut Oil in the packing upto 200 ml, which are not marketed as Hair Oil and held that just because the retail packs are of 200 ml. of less, the same cannot be presumed to be meant for use as Hair Oil and would not be classifiable under Heading No.3305. One of the Tribunal s judgement is in the case of Capital Technology Ltd. (supra) reported in 2011-TIOL-775-CESTAT-Bang, wherein the Tribunal independently examined the issue of classification of Coconut Oil packed in retail packs of 50 ml., 100 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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