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TMI Blog2018 (9) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... re evidence and another report, which substantiate their stand. The Hon'ble Supreme Court in the case of CCE, Calcutta Vs Alnoori Tobacco Products [2004 (7) TMI 91 - SUPREME COURT OF INDIA] has observed that the precedent decisions, before applying, have to be shown to fit factual situation of the given case. Circumstantial flexibility, one additional or different fact may make world of difference between conclusions of two cases and disposal of cases by blindly placing reliance on a decision, is not proper. As such the presence of the subsequent report of the Chemical Examiner in the present case may make the entire difference having bearing on the finality of the matter. Inasmuch as, the Adjudicating Authority has neither referred to the said report, nor examined the same and has simplicitor followed the Hon'ble Supreme Court's decision, the impugned order is required to be set aside and matter remanded with directions to consider the applicability of the subsequent report of the Chemical Examiner and to re-decide the issue accordingly. Appeal allowed by way of remand. - APPEAL No. E/929/2009-MUM - A/87073/2018 - Dated:- 31-7-2018 - Smt. Archana Wadhwa, Member (Judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various persons were recorded. Shri C.P. Venugopal, Deputy General Manager, (Production and Engineering), in his statement dated 20.02.2006 deposed that they were manufacturing both filter cigarettes as well as non-filter cigarettes and the process of manufacture and the machines used were the same for both the types of cigarettes but Tipper brand cigarette is other than filter cigarette, inasmuch as tobacco could be seen from both the ends. He further deposed that though C.T. Paper was used at the mouth end for the filter cigarettes and tipper brand cigarettes, the mouth end of tipper brand tobacco CRS (Cut Rolled Stem), whereas in the filter cigarettes acetate filter material (white in colour) would be clearly seen. As such tipper brand cigarettes cannot be considered to be filter cigarettes. 6. On 29.03.2006, samples starting from raw material stage to finished stage of tipper brand cigarettes were drawn and sent to Deputy Chief Chemist, Central Excise and Customs Laboratory, New Customs House Mumbai on 25.04.2006. The report of Chemical Examiner was received under the cover of his letter dated 08.05.2006. Inasmuch as, the said report considered the cigarettes to be filter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and also the evidence have changed in the present matter, the adjudicating authority was not justified in simplicitor following the earlier decision. Elaborating on his arguments, Shri Mandal submits that as per the manufacturing process brought on record during investigations, there is hardly any difference between the manufacture of plane cigarettes and filter cigarettes except that in respect of filter cigarettes, filter rods are procured from outside and joined with the plane cigarettes, whereas in respect of Tipper brand cigarettes tobacco filter rods manufactured by the assessee are joined with the plane cigarettes. The functions of acetate filter rods as well as Tobacco Stem Rod are the same, i.e. to filter smoke and to stop loose particles to enter into the mouth while smoking. Two stage manufacturing process is undertaken by the assessee- 'for manufacture of filter rod and another is manufacture of cigarettes rod. As also the outer wrapper used for the filter rods is of gold tipped C.T. Paper resembling that of the filter cigarettes. He submits that the only difference in the filter cigarettes is that viscose/cellulose acetate rod is used as filter, while in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the impugned order, we note that the issue requires to be decided in the present appeal is as to whether Tipper cigarettes manufactured by the respondents are filter cigarettes or not. The Adjudicating authority by relying upon the Hon'ble Supreme Court's decision in the case of CCE, Ghaziabad Vs M/s International Tobacco Co. Ltd. reported at 2008 (231) ELT 207 (S.C.) has dropped the demand raised against the assessee. However, the revenue's strong objection is that earlier order of the Hon'ble Supreme Court, vide which the Tribunal's Order stands upheld was primarily based upon the report of Chemical Examiner, which was in of the assessee. Subsequent to the said decision, the revenue has again drawn samples and has provided the said report of the Chemical Examiner whose report establishes the revenue's contention. 11. We have gone through the earlier order of the Tribunal in the case of International Tobacco Co. Ltd. dealing with the classification of the Tipper cigarettes. The report of the Chemical Examiner, as was available in the earlier case was as follows:- C. No. 138 Chem/Misc/2005/M/CLM/Misc/2 dated 7-11-2005 Report: The samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absorption or particulate matter. Cellulose Acetate is widely marketed cigarette filter material at present. Sponges, foams, adsorbents etc. are among several other materials frequently used. The use of activated carbon filter in cigarette has been recently introduced in U.S.A. It may further be stated here that the filling contained in the filter rod do not answers test for the presence of Nicotine , the principle alkaloid present in Tobacco. In my humble opinion the filling in filter rod of the product under reference will be covered under the term Natural Fibres as stated in the quoted literature for filters. 12. As is seen from the above report the same is based upon the definition of the filter and filtration as is available from the technical books wherein natural fibers have also been held to be the material used in the filtration. As per the said report the filling in filter rod of the products are covered by the term 'Natural Fibers'. If that do so the cigarette have to be held as filter cigarette. 13. It is a fact that the classification of tipper brand cigarette already stands held in favour of the assessee by the above referred decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mono dual or multiple materials with or without special/selective absorbing additives. Generally, filters are made of viscose staple, acetate and/or crimped paper and should pass specification regarding (1) manufacture of filter (a) formation (b) cut off (2) dia (3) hardness and resilience (4) pressure drop and (5) filtration efficiency tests. For which this laboratory is not equipped. However, in the product under reference, the material filled in brownish tipped portion appears to be of other than those mentioned above. The report of the chemical examiner is solely based on the nature of material used for making the filter. The chemical examiners report s appears to be based solely only on the fact that the material used for filters is not made of viscose staple , 'acetate' and/or crimped paper . The chemical examiner s report clearly disregards the facts that ISO 10666-1983 clearly considers all suitable non toxic materials bonded with non toxic binders as permissible material for filters. The ISO-10666-1983 does not limit itself solely to viscose staple, acetate and/or crimped paper as the materials for filters. These materials have only been cited as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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