9911796707
TMI Blog2007 (8) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... KS', imported from China/Vietnam. The goods were classified under Heading 3707 41 00 attracting 'nil' rate of additional duty of customs (countervailing duty). The appellants requested for provisional assessment, which was declined by the original authority on the ground that identical goods had already been classified finally by the Commissioner of Customs (Appeals) under Heading 4421 90 90 attracting 16% CVD. Against the decision of the original authority, they preferred an appeal to the Commissioner (Appeals) and the latter affirmed the decision of the lower authority. Hence the present appeal of the assessee. 2. After examining the records, we note that the imported incense sticks were of length 8" to 9" and that the Chemical Examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longer agarbathis in the form of sticks having a wood burning odour, on burning. It consists of wood stick covered with wood flour and having a covering of colourant. It is free from charcoal and odoriferous substances." The appellate authority rejected the assessee's claim (based on the two test reports) that the goods considered in Order-in-Appeal dated 14-2-2006 was different from the subject goods. It relied on a statement of a functionary of the appellants, and recorded the finding that the subject goods were not different from the goods considered in the above Order-in-Appeal. As the appellants had not challenged the Order-in-Appeal, learned Commissioner (Appeals) took the stand that classification of the goods in question was conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to them to take a different stand in respect of the same item imported later. In this connection, the Apex Court's judgments in Boving Fouress Ltd. v. Commissioner of Central Excise, Chennai [2006 (202) E.L.T. 389 (S.C.)] and a few other cases were relied on. Learned Counsel sought to differentiate the subject goods from the goods covered by Order-in-Appeal dated 14-2-2006 by submitting that the incense sticks covered by the past import were free from charcoal and odoriferous substance while the goods in question contained charcoal and also had pleasant odour while burning. This distinction was based on the test reports. On account of such distinction, counsel argued, classification of the subject goods was not in any way affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N Explanatory Note under Heading 44.21 does not in any way support the case of the Revenue as put forth by the DR. On the other hand, the appellants might take the cue from the Note referred to by learned DR, to fortify their case. The particular Note is to the effect that Heading 44.21 includes match splints which are manufactured by cutting drawn/sliced/peeled wood to the dimensions of matches. This Note further says that such match splints may be impregnated with chemical substances such as Ammonium Phosphate. It is this part of the HSN Note that has been relied on by learned DR. Obviously, he likened the incense sticks (covered with charcoal etc.) to match splints impregnated with chemical substances. We have not found this comparison t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of the view that the Revenue cannot claim advantage of the note appended to the test report. 7. The sub-heading 3307 41 00 canvassed by the appellants is a '- -, entry appearing under the '-' entry reading thus: "Preparations for perfuming or de-odorising rooms, including odoriferous preparations used during religious rites." It reads as follows: '--' "Agarbathi" and other odoriferous preparations which operate by burning. As we have already noted, the Chemical Examiner who tested samples of the subject goods found them to be incense sticks and called them "agarbathi". The department accepted the test report. It is not in dispute that the subject item operates by burning. Hence, as rightly claimed by the appellants, SH 3307 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h-September, 2006. He has also sought to differentiate the 19-" long incense sticks from the 8"/9"- long incense sticks. This differentiation, however, does not appeal to us inasmuch as length of wood stick is not any determinative factor in the classification of incense sticks, whether as "agarbathi" or as "other articles of wood". The 19"-Iong incense sticks were imported prior to March, 2006. The next imports were those covered by 28 bills of entry and the same were made during March-September 2006. Then came the subject imports in October-November 2006. In this chronology, the earliest imports were assessed under Heading 4421 90 90 and this assessment was accepted by the appellants by not challenging Order-in-Appeal dated 14-2-2006 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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