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TMI Blog2024 (7) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification of these two new products/variants appears to be declared under CTH 3304, since according to the appellant, these new products were meant specifically for skin care. 2. It appears that the appellant had informed jurisdictional superintendent vide letters dated 7.7.2010 and 20.04.2011 about their manufacturing the variants of perfumed Petroleum Jelly viz. the products under dispute and also explaining the manufacturing process of the same. It was only in 2014, i.e., 29.4.2014, that the Respondent issued the show cause notice proposing to demand Rs.94, 53, 853/- along with applicable interest and penalty on the clearance of the disputed products during the period August 2010 to February 2014, on the ground that their classification of the disputed products was incorrect since the same was to be classified under Tariff item 2712 90. It also appears from the record that a detailed reply was filed to the above show cause notice, but however vide impugned Order-in-Original No. 08/2015 (C) dated 24.03.2015, the original authority has confirmed the proposed demands. It is against this order that the present appeal is filed before us. 3. Smt. Padmavathi Patel and Shri Viraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C.) e) O.K. Play - 2005 (180) E.L.T. 300 (S.C.) 6.2. They have also referred to one another Order of the Tribunal in the case of Pond's (India) Ltd. Vs. CCE, Trichy [2005(190) ELT 082 (Chennai)] wherein, the product Vaseline Petroleum Jelly Perfumed Pomade used for lubrication and protection of hair was held to be rightly classifiable under heading 3305. 6.3. It was argued that the quantity of fragrance that is present in a product could not be of any criteria insofar as classification of a product is concerned, as long as the presence of such perfume is not disputed because, the statute does not prescribe such quantity / quantum or percentage. 7. Insofar as the invocation of extended period of limitation on the grounds of alleged suppression is concerned, it was contented that as early as in 2012, the revenue had recognized the classification of Vaseline perfumed white petroleum jelly - Baby to be classified under Chapter 33 and on their claim for refund of the difference in duty from the originally declared under Chapter 27 vis-à-vis under Chapter 33, the original authority had sanctioned the refund thereby agreeing with the classification of the perfumed white pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classified Vaseline perfumed petroleum jelly Baby & white petroleum jelly - Aloe Vera under sub-heading 3304 9990, they have manufactured quite similar product Vaseline white petroleum jelly classifying the same under Chapter sub-headings 2712 1090. 8.3. They have claimed that white petroleum jelly is the pure form of petroleum jelly and when perfume is added to the same, then perfume petroleum jelly is obtained that would merit classification as they have done, as a cosmetic. 8.4. After going through the manufacturing process, formulation and specification of white petroleum jelly and that of perfumed petroleum jelly are held to be one and the same as it was evident for the FAA from the constituents that the content of perfume is very minuscule. 8.5. Both these products are manufactured out of the same raw material i.e. petroleum jelly, adding a minuscule of perfume would not make it a different product under a different chapter and nor would naming the same as Vaseline Petroleum Jelly - Baby and Vaseline Petroleum Jelly - Aloe Vera in any way change the basic character of the product viz., petroleum jelly. 8.6. Addition of negligible quantity of perfume to a product already c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Kerala [2023 (385) ELT 162 (SC)], although under State VAT Act, Apex Court had an occasion to interpret classification of "medicated talcum powder". Hon'ble Court has referred to a number of its own earlier judgements insofar as the issue of classification is concerned. At paragraph 41 of the said judgement Hon'ble Court has indicated a three - step test indicated in CIENS laboratories [2013 (295) ELT 3 (SC)]. Further, the court has summarised other tests that have been indicated in different judgements. Paragraph 41 of the said decision reads as under: "41. In CIENS Laboratories (supra), the court had indicated a three-step test to determine, if a product were a medicament or not. Other tests have been indicated in different judgments. All these may be summarized as follows : (i) When a product contains pharmaceutical ingredients with therapeutic/prophylactic or curative properties, the proportion of the ingredients is not decisive. The curative attributes of the ingredients render it a medicament and not a cosmetic. (CIENS Laboratories) (ii) A product can be sold without a prescription from a medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troleum jelly Aloe Vera are intended for application on skin for skin care, to act as a barrier cream to prevent cracking of skin in dry conditions and therefore, the product in question were essentially for taking care of Skin. 16. But however, it is contended by the appellant before us that * Petroleum Jelly is manufactured from liquid light paraffin, paraffin wax with additives of fragrance gentle Lily, fragrance aloe vera, * White petroleum jelly was without any additive or perfume; hence, the presence of perfume/fragrance makes their case for classification of the products in question as 'Cosmetics' and not medicaments and therefore, the classification adopted by them was required to be upheld. 17. It is relevant now to refer to both to Chapter Headings; Chapter 27 of CETA refers to "Mineral Fuels, Mineral Oils and Products of their distillation; Bituminous Substances; Mineral Waxes." Entry at 2712 gives the description of goods as "Petroleum jelly, paraffin wax, microcrystalline petroleum wax, ozokerite, etc. obtained by synthesis or by other processes, whether or not coloured". This gives an indication to be covering petroleum jelly per se, in pure f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held as under: "--- 2. This Court in Collector of Central Excise, Shillong v. Wood Craft Products Limited [1995 (77) E.L.T. 23] has said : "We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI Glossary, which has a different purpose, cannot, in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expression 'similar laminated wood' in the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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