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TMI Blog2024 (3) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, this contention must be rejected. No evidence has been brought on record either in the impugned order or in the Order-in-Original to show that the goods cleared by the appellant were classifiable under CETH 2403. What operation was undertaken, what was the nature of the products has not been examined and recorded. Nothing is available on record as to what made the finished goods cleared by the appellant during this period different from what was being cleared by them in past and post the brief period of February 2012 to August 2012. The impugned order itself hold that the products produced and cleared by the appellant during the entire period of demand was unmanufactured tobacco. In the case of YOGESH ASSOCIATES VERSUS COMMISSIONER OF CENTRAL EXCISE, SURAT-II [ 2005 (9) TMI 173 - CESTAT, MUMBAI ] Bombay Bench has held The explanatory notes to HSN especially when pari materia are binding to arrive at the classification and the law on this issue is well settled. We, therefore have no reason to take out the product impugned in these appeals, from the Heading 2401.10 as arrived by us and place it elsewhere under Chapter 24. There are no merits in the impugned order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals), which has been partly allowed in their favour and for a brief period from 09.02.2012 to 31.08.2012 demand has been upheld against them along with penalty. Aggrieved appellant has filed this appeal. 3.1 We have heard Shri Nishant Mishra, Advocate for the appellant and Shri A.K. Choudhary, Authorised Representative for the revenue. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of argument. 4.2 While upholding the demand for the period from 09.02.2012 to 31.08.2012, Commissioner (Appeals) has observed in para-07 of the impugned order as follows:- 7. From the record, it is apparent that the appellant had agreed to classification of the said product under CETH 2403 but contested that the flavors were added only from February 2012 to August 2012, citing the purchase invoices, ledger accounts and balance sheet as documentary evidence. However, in para 20 of the impugned order it has been held that this submission of the appellant was beyond comprehension and hence not acceptable. Demand of duty has been confirmed for the period FY 2011-12 to 2014-15, presuming that the goods manufactured during the entire per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in observing that merely because the appellant paid the aforesaid portion of duty subsequently in cash, it had accepted the legal position that payment of duty through Cenvat Credit Account was not permissible under the provisions of Rule 173G(1)(e) of the Rules. Whether such a course of action was permissible or not had to be examined in the light of the legal provisions. There is no estoppel against law. Merely because the appellant had yielded to the demand of the Revenue to pay that portion of duty also in cash, would not mean that the appellant was precluded from taking a stand that such mode of payment through Cenvat Credit Account even during the period when facility of payment of duty by instalments had been withdrawn for two months, was permissible. It had taken a specific defence in this behalf and, therefore, the Tribunal was required to examine the matter in the light of the aforesaid Rule. D. Green Gas Ltd. [2018 (15) G.S.T.L. 682 (All)] 25. The revisionist did not dispute its liability to entry tax before the Assessing Authority as it was not aware of the correct legal position, but while filing the first appeal it disputed the same based on the Notification dated 18- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw laid down by the Supreme Court, induces us to set aside the findings and the basis of the Commissioner holding the product, in this case, to be Chewing tobacco. (b) In the same decision of D.J. Malpani (Supra) the Apex Court in paragraph 3 had observed that the Appellants therein were calling for test of the product which was ignored by Revenue and the Apex Court directed the test should be performed and thereafter it should be determined whether it was unmanufactured tobacco or manufactured and covered under Heading 24.01 as was the case of chewing tobacco of other manufacturers. In the case before us there is no test report relied upon the Appellants in the paper book have submitted that samples were taken; test report if any is not relied upon. However absence of test Report will not materially affect the position herein, as the constituents, the ingredients process used by the appellants, in their premises, is not under contest by both side and are well known. They are analogues to the contents process etc. as in the case of M/s. DTPL, as found by the ld. Adjudicator. In paragraph 101 of the order impugned along with noting to the effect that the mixture in question is too c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly viable as for chewing, by human beings as it is and is an ingredient raw material for manufacture of pan masala and gutka, which, in turn are consumed by humans by chewing. The entity herein cannot be accepted as manufactured chewing tobacco‟ as arrived at the ld. Adjudicator. 2.3(a) It is found from the impugned order that the Commissioner has come to a conclusion that the processes indulged in by the Appellants bring about an irreversible change in the raw tobacco. Therefore he arrives at his classification under 24.04. In absence of any test report or other material on record, it is not understood, how the ld. Adjudicator could come to a conclusion that raw tobacco by the treatments indulged by the Appellants have undergone a irreversible change. We cannot uphold this finding. (b) There is no material to conclude that Raw Tobacco leaf has undergone irreversible change. Since the applications on Raw Leaf do no result in proven irreversible change, the Raw Leaf Tobacco remains Raw leaf Tobacco unmanufactured. (c) Tobacco leaf, treated by the Appellants, would remain to be classified as unmanufacture tobacco when we find that the HSN General notes to Chapter 24 of Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication on the leaf of raw tobacco, as in this case, does not render the tobacco ready for smoking/chewing by a human consumer then such cased Tobacco cannot be ruled out of classification under 2401 of chapter 24 especially when we find that Heading 2401 of Central Excise Tariff, 1985 are pari materia HSN and the further headings 2402, 2403 and 2404 are not aligned with HSN. The explanatory notes to HSN especially when pari materia are binding to arrive at the classification and the law on this issue is well settled. We, therefore have no reason to take out the product impugned in these appeals, from the Heading 2401.10 as arrived by us and place it elsewhere under Chapter 24. (e) Board vide its Circular No. 37/90-CX. 3, dt. 17-7-90, in case of flavours/scents added in preparation of scented snuff held the view that Snuff Tobacco even after addition of Perfumes, Scents and Menthol remain Tobacco. Therefore, the explanatory notes of HSN bringing in the leaf treated with Tobacco Solution Quimam herein and thereafter with flavouring perfumes agents cannot transform Raw leaf tobacco unmanufactured to manufactured tobacco. The addition of there volatile flavours will not amount to re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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