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TMI Blog2019 (6) TMI 1600X X X X Extracts X X X X X X X X Extracts X X X X ..... a subsequent Trade Circular No. 808 dated 25.02.2005 clarifying that the amendment of 2004 is merely a technical change of transition from six digit to eight digit classification with no substantive change to be brought in. In the present case, admittedly, the impugned product, i.e. the raw material/ intermediary product in manufacture of lal dant manjan (tooth powder), namely dant mukta has an essential character of lal dant manjan . Admittedly, it contains all such ingredients as are the ingredients for lal dant manjan . It is only one constituent, i.e., gairric powder which is being added to dant mukta for it to be finally called as lal dant manjan . There is no denial on record to the fact that dant mukta imparts the essential character to the final product lal dant manjan and the garric powder which is found in a higher concentration in lal dant manjan does not contain any tooth cleansing property and it only acts as a carrier - this intermediary product is nothing but the tooth powder (under six digit regime) or powder for oral hygiene (under eight digit regime), classifiable under 330610/33061010 respectively. Applicability of Notification No. 02/2011 CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which the impugned goods dant mukta used in manufacture of lal dant manjan is held not classifiable under Chapter sub-head 33061010 and as such is not eligible for benefit of Notification No. 02/2011 CE dated 01.03.2011 thereby confirming the demand as was proposed vide show cause notice No. 81/GR.23 dated 11.01.2018. The facts in brief are that the appellants are manufacturing and clearing lal dant manjan falling under Chapter heading 33061010. During the course of audit of accounts for the period 2014-15 to 2015-16, Department noticed that the appellant is clearing lal dant manjan at the concessional rate of 6% Central Excise duty by availing the benefit as mentioned at Serial No. 23 of Notification No. 02/2011 CE dated 01.03.2011. It was also observed that during the manufacture of said lal dant manjan an intermediary product namely, dant mukta comes into existence which has also been cleared by availing the said concessional rate of duty as per the aforesaid Notification treating it to be classifiable under 33061010 only. Alleging that the said intermediary product, i.e., dant mukta is neither sold as tooth power nor is sold in retail packages that the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry has to prevail over the residuary entry and the intermediary product of the appellant i.e. dant mukta falls within the specific entry classified under 33061010, i.e., the powder for dental hygiene. It is for this reason that the impugned product is eligible for the benefit of Notification No. 02/2011 CE dated 01.03.2011. 3.2 Finally, it is submitted that the Department was not entitled to invoke the extended period of limitation as there is nothing on record to prove that the appellant had intention to evade the payment of duty. Learned Counsel has relied upon Aarti Drugs Ltd. Vs. CCE, Thane II, 2015 (324) ELT 594 (Tri. Mumbai) to impress upon that matter pertaining to classification is an interpretational issue and as such the malafide intention to evade the duty cannot be enforced upon. Department is not entitled for invoking the extended period of limitation. The Appeal, therefore, is prayed to be allowed. 4. Learned Authorised Representative, on the other hand, has justified the order under challenge. It is impressed upon that the Commissioner has rightly distinguished the case of Dabur India from the present case. Also, it is submitted that for availing the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixative pastes and powders; yarn used to clean between teeth (dental floss), in individual retail packages 3306 10 - Dentifrices 33061010 - In powder Kg 12.5% 33061020 - In paste Kg 12.5% 33061090 - Other Kg 12.5% 33062000 - Yarn used to clean between the teeth (dental floss) Kg 12.5% 33069000 - Other Kg 12.5% 5.3 The perusal makes it clear that the word tooth powder has been taken away from the existing eight digit tariff and any kind of powder which is the preparation for oral or dental hygiene is held covered under Chapter heading 33061010. Otherwise also, the Tribunal Mumbai in the case of Eco Valley Farms Foods Ltd. Vs. CCE, Pune III, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a carrier. Further, in terms of Rule 3(b) of General Rules of Interpretation also, goods are to be classified as if they consisted of the material or component which gives them their essential character. Since dant mukta imparts the essential character of tooth powder, the same is correctly classifiable under Tariff item 3306 10 10. Hence, we are of the opinion that this intermediary product is nothing but the tooth powder (under six digit regime) or powder for oral hygiene (under eight digit regime), classifiable under 330610/33061010 respectively. 7. Above all, the issue is no more res integra as it was decided way back in the year 2000 by this Tribunal in the case of Dabur India Ltd. Vs. CCE, Meerut, 2000 (36) RLT 639 (CEGAT) wherein it was specifically held that dant shakti , the product used as raw material for the manufacture of lal dant manjan , is akin to tooth powder, and the same is classifiable under Chapter heading 330610 of Customs Tariff Act, 1975. This decision was considered by Tribunal Kolkata in the case CC CE, Patna Vs. Sant Products Ltd., 2004 (171) ELT 109 (Tri. Kolkata). Subsequently, Tribunal Delhi in the case of Precise Laboratories Pvt. Ltd. Vs. CC, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tail, is also not appropriate finding because the goods in packages of a kind sold by retail are not the only goods for holding 3303 3307. Rather Chapter Note 3 also uses the word inter alia , which as per the dictionary meaning is amongst other things . The word inter alia in Chapter Note 3 is comprehensive in nature to include even the products sold in lump sum packages and also products sold in retail packages. Hence, irrespective dant mukta is not sold in retail packages but in bulk packages, it is eligible for the benefit of concessional duty under Notification No. 02/2011 dated 01.03.2011. Accordingly, we are of the opinion that Department has wrongly denied the benefit of the impugned Notification to product of the appellant called dant mukta . 9. Finally, coming to the issue of extended period to not to be invokable and penalty as well as interest to not to be imposable/recoverable, we observe that period of impugned demand is w.e.f. December, 2015 to January, 2017. The show cause notice is dated 11.01.2018, hence, the issue of time barred is applicable only towards the demand of the month of December, 2015. We are of the opinion that Department initiated the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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