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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 ..... fficers to their factory on 25th January, 2006, it was found that the appellants were manufacturing "Tipper" brands Cigarettes which was of two types- "Tipper Plain Gold Tipped" and "Tipper Premium Gold Tipped". Both the types of Cigarettes were being cleared by them as 'Plain Cigarettes' by classifying the same under Sub Heading 2402 20 10 and 2402 20 20 of the Central Excise Tariff. As the Filter Cigarettes are classifiable under heading 2402 20 30 and attracted higher rate of duty and inasmuch as the Cigarettes being manufactured by the assessee appeared to be Filter Cigarettes "the revenue entered in a view that Filter Cigarettes are being cleared by the respondent under the guise of Plain Cigarettes and further took up investigations. 4. The manufacturing process adopted by the assessee revealed that they manufactured the filter rod containing crushed tobacco cigarettes and smoking rod containing homogenous processed crushed tobacco leaves separately. These two rods of predetermined length are subsequently joined together with the help of Cork Tipping Paper (C.T. Paper). The other filter cigarette also adopted the same process but instead of manufacturing filter rods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2007 (213) ELT 75 (Tri.-Del) vide which the Tipper Brand Gold Tipped cigarettes were held to be other than filtered cigarettes. Being aggrieved with the said order of the Commissioner, revenue has filed the present appeal. 8 Learned Advocate Shri Mandal engaged by the revenue, has drawn our attention to the impugned order of Commissioner, which has not taken note of the entire facts and circumstances including the report of the Chemical Examiner and by merely relying upon the Hon'ble Supreme Court's decision has held in favour of the assessee. It is the contention of the learned Advocate that a reading of Tribunal's order and also the Hon'ble Supreme Court's decision in the case of M/s International Tobacco Co. Ltd. would clearly show that the disputed issue was decided in favour of assessee based upon the report of the chemical examiner which was in favour of manufacturer and by observing that the revenue did not cross examine the said examinee. The Adjudicating Authority in the present case has blindly followed the earlier order of the Hon'ble Supreme Court without appreciating that the subsequent report dated 08.05.2006 procured by the revenue from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has further submitted that reliance on the decision of International Tobacco Co. Ltd„ without appreciating the facts in the present case, was not just and proper, inasmuch as, the Chemical Examiner report in the present case was different than the available in the earlier case. He refers to the Hon'ble Supreme Court's earlier decision in the case of CCE, Calcutta Vs Alnoori Tobacco Products reported as 2004 (170) ELT 135 (S.C.) laying down that one additional or different fact may make a world of difference between conclusions in two cases and disposal of cases by blindly placing reliance on the decision, is not proper. Accordingly, he submits that inasmuch as the Chemical Examiner report in the present case is in favour of the revenue, the impugned order may be set aside and appeal to be allowed. 9 Countering the arguments learned advocate appearing for the respondent vehemently argued that inasmuch as the classification of the "Tipper" brands of cigarettes stands already decided right up to the Hon'ble Supreme Court, it is not open to the revenue to re-decide the same again. Accordingly, he submits that Commissioner has rightly followed the earlier decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d portion appears to be of other than those mentioned above." Sealed remainants are returned herewith. R.S. Malhotra Chemical Examiner It was primarily on the basis of the said report that Tribunal held that inasmuch as the filter rod has not used viscose staple, acetate and/or crimped paper, the cigarette cannot be held to be filter cigarette. As against the above report, the subsequent report of the Chemical Examiner dated 08.05.2006 is as under:- "The sample forwarded thereunder described as TIPPER GOLD TIPPED and TIPPER premium GOLD TIPPER have been examined. Each type has been manufactured by joining the filter rod and cut rolled stem with the help of C.T. Paper. As, very correctly pointed out in your letter the function of the filter rod is to prevent ingress of loose tobacco in the mouth and that of C.T. Paper to prevent wetting of the cigarette and its damage. This is corroborated by the technical literature available on the product. In this regard excerpts from the Wealth of India Industrial Products Part IX page 19 Ed. 1976 is reproduced for your kind perusal & appreciation. "Filter & Filtration:- The most effective and simplest way to alter cigarette smoke is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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, we are of the view that 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. 14. Revenue's appeal is allowed by way of remand. (Pronounced in Court on- / /2018) (Raju) Member (Technical) (Archana Wadhwa) Member (Judicial) Per: Raju 15. I am in agreement with final decision arrived at by Ld. Member (J.) I would like to observe the following as well. The report of chemical examiner relied in the case of International Tobacco Company Ltd. is reproduced above in para 11 above. There is an inherent contradiction in this report of chemical examiner, in so far as in the para 2 & 3 of the report are concerned. The chemical examiner, in his report in case of International Tobacco Company has observed that: "However, as per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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