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TMI Blog2019 (1) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant is registered with the Central Excise department and manufacturing the following products:- (i) Pan Masala (ii) Branded Chewing Tobacco (BCT) (iii) Jarda Scented Tobacco. (JST) The appellant was paying duty in terms of Notification No.16/10-CE dt.27.2.2010 on BCT and filing regular ER-1 return by classifying their product under heading 24039910 of Central Excise Tariff Act,1985. On 1st March, 2015, Notification No.16/15-CE was amended by Notification No.5/15-CE dt.1.3.2015 wherein the rate of duty on BCT was enhanced to Rs. 38.64 lakh per machine per month and duty on JST was fixed to Rs. 27.05 lakh per machine per month. Due to change of duty structure, the appellant filed declaration under Rule 6 of Chewing Tobacco R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its that initially the appellant tried to take benefit under Notification No.5/15-CE dt.1.3.3015 and filed declaration by showing that as they are manufacturing JST but the adjudicating authority held that the appellant has filed the said declaration under the guise of reduced rate of duty on JST. In fact, the appellant has manufactured BCT only. The said order of the adjudicating authority dt.4.3.2015 was accepted by the appellant and paid duty accordingly. Till 30.4.2015, there was no dispute. The dispute arose after 1.5.2015 when the Notification No.25/15-CE came into force wherein the rate of duty on JST was enhanced and the order dt.4.3.2015 was reviewed on 27.5.2015, thereafter the appeal was filed before the Commissioner (Appeals) wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant in their declaration dt.2.3.2015. He further submits that authorized representative of the appellant has admitted their product Pukar Zarda 55 is consumed by mixing with pan masala and is not consumed independently. Thus, the mode of consumption of the said tobacco product is in harmony with the common accepted practice of Jarda consumers. Further, selling of Jarda in the garb of chewing tobacco also can tantamount to violation of consumer rights which will be an illegal trade practice. Therefore, the product manufactured by the appellant is only JST. 8. Heard the parties and considered the submissions. 9. On careful consideration of the submissions made by both sides, we find that the following facts are in dispute:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... samples are required to be drawn and test report is essential to classify the product. Admittedly, in this case, no sample was drawn to find out the composition of the product, in that circumstance, we hold that the classification determined by both the sides are on assumptions and presumptions. Although the appellant filed declaration on 2.3.2015 and changed their classification from BCT to JST. The said declaration was rejected by the adjudicating on 4.3.2015, which has been accepted by the appellant and started paying duty on BCT of their product from 1.3.2015. In that circumstance, the benefit of doubt goes in favour of the appellant. The order of the adjudicating authority was reviewed only after introduction of Notification No.25/15-C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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