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TMI Blog2004 (6) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ialist" classified under CETA 1985, schedule 3808.10. 2. On scrutiny of RT 12 return and the classification declaration filed, it was observed, "...... The product "Baygon Mosquito Specialist" was in aerosol cases of 320 ml and 500 ml having spraying device for household use with a declaration on the cans 'Repels Mosquitoes and other flying insects'. The assessee had replaced the words "Repels Mosquitoes and other flying insects" by the words "Control Mosquitoes and other flying insects"." They had removed the subject entity after payment of duty on value as under Section 4 of the Central Excise Act, 1944, where they were, as found by the lower authorities to discharge duty under Section 4A of the Central Excise Act, 1944 in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oil 12-1-98 3. Deltamethin 0.11% + Allethrin 0.13% aerosol 12-1-98 " Thus, it is apparent, that the ingredient active and acting as an insecticide in the entity under dispute i.e. the aerosol can and the 'Mosquito coil' being manufactured is same i.e. Allethrin and in same percentage in both the products. (c) Allethrin is an insecticide, in its effect, is not in dispute. As per the use of Allethrin, The Pesticide Manual Tenth Edition, prescribes the following under the heading 'Applications' - " Mode of action Non-systematic insecticide with contact, stomach and respiratory action, Gives rapid knowckdown. Paralyses insects before killing them. Uses control of flies, mosquitoes , ants, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Changzhou Kangmel Chemical Industry Co. Ltd. on Brief Introduction to Application of Household Sanitation Insecticide as relied upon by the learned Jt. CDR on perusal reads and reveals - Thereafter it deals with the coil shaped incense which states that the temperature on combustion volatilizes effectively into the air the active ingredient Allethrin. Similarly the tablets placed on electric heater volatilize the active ingredient Allethrin into the air; the liquid also acts in the same manner by volatilizing the liquid containing the insecticide by electric heating; aerosols achieve the effect by transmitting the ingredient Allethrin into a cloud/fog they create, by the spray action. "....... In order to serve customers and soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mosquito coil, tablet, liquid and aerosol containing is the same. The mode of operation being same, the active ingredient is the same, then it cannot be concluded that only Mosquito Coil, Mosquito Tablet (Mats), Mosquito Liquid, would be covered as Repellents under the entry 37 to the notification which reads as - "Mosquito coils, mats and other mosquito repellants" and the same insecticide acting and delivered in same fashion could not be a repellant and covered by that entry". (f) The appellants have tried to distinguish between insecticides that kill and insecticides that repel and submit that should be different. They claims that the aerosol to be used for 'Kill' and of insecticide is without any basis. When mosquito coil with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls not being covered by 'other repellants' on grounds of Ejusdem generis would fail. (h) The assessments under Section 4A are therefore called and duty as determined is upheld. (i) The advertising mode will not be relevant for classification. However, the change, in the advertising mode, would be relevant to show the conduct of the assessee to be an exercise in revenue avoidance. The line between avoidance and evasion is very thin. The Ghost of Westminister has been exorcised from the law in UK and also by the Apex Court in India. "Avoision" is an amalgamation of the words 'avoidance' and 'evasion' and is a recognized word being used in literature on the subject of Tax Dodging, Tax Shelters. There is a case of 'avoision' when advertisem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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