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TMI Blog2005 (10) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... rous substances, which is the room freshener. The products dispense a continuous dose of the room freshener into the room to ensure that the room is smelling pleasant at all times. The dispenser is required to be replaced from time to time when the dispensable quantity of the room freshener as contained in the dispenser is exhausted." However, at the oral hearing, Mr. Tarun Gulati clarified that the products are only tinned odoriferous substances containing alcohol. It is stated that the normal use of the products is in households, offices, restaurants, airport lounges and other public places. On these facts the applicant seeks advance ruling of the Authority on the following reframed question : - "Whether the products (room deodorizers and room freshener) merit classification under Chapter 33 of the Central Excise Tariff Act, 1985". 2.The Commissioner submitted the following comments : The proposed classification by the applicant is disputed and it is stated that the products fall within the meaning of "perfumery", "cosmetics" or "toilet preparations" specified under Note 1(d) of Chapter 33 of the "Central Excise Tariff Act" as defined in Medicinal and Toilet Preparations (Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erfumery,(d) cosmetics and toilet preparations containing alcohol or opium, Indian hemp or other narcotics and for this purpose, these expressions have the meanings respectively assigned to them in section 2 of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955) 2. x x x x 3. Headings 3303 to 3307 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings of a kind sold by retail for such use. 4. The expression "perfumery, cosmetic or toilet preparations" in heading 3307 applies, inter alia, to the following products: scented sachets, odoriferous preparations which operate by burning; perfumed papers and papers impregnated or coated with cosmetics; contact lens or artificial eye solution; wadding, felt and nonwovens, impregnated, coated or covered with perfume or cosmetics; animal toilet preparations." Note 1(d), quoted above, says that perfumery, cosmetics and toilet preparation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e held to be confined to cases within the category of which public processions, rejoicings and illuminations are specific instances and should not be extended to cover the circumstances of ordinary day-to-day traffic conditions. In Re Latham decd. It was held that the words "or other person" in the pharse "trustee, guardian, committee or other person" in section 8(4) of the Finance Act, 1894 meant a person in a similar position to a trustee, etc., and could not refer to a person beneficially interested." The import of this rule is best explained in a concise formulation by Francis Bennion in the following words :- "A statutory term is recognized by its associated words. The Latin maxim noscitur a sociis states this contextual principle, whereby a word or phrase is not to be construed as if it stood alone but in the light of its surroundings". Maxwell's Interpretation of Statutes alluded to a few good examples of application of this rule; the following among them, would be instructive. "The noscitur a sociis rule was applied to the construction of the Offences against the Person Act, 1837, which made it felony to shoot at or to "stab, cut or wound" any person. The word "wound" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended". It would be interesting to extract from Maxwell a few examples of the application of ejusdem generis.: "The Sunday Observance Act 1677, which enacts that "no tradesman, artificer, workman, labourer, or other person whatsoever, shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord's Day" was held not to include a coach proprietor, a farmer or a barber, the word "person" being confined to callings like those specified by the preceding words. The Metropolitan Building Act, 1855, which entitled a district surveyor "or other person" to a month's notice of action for anything done under the Act, was held, on the same principle, to give that privilege, not to every person sued, but only to persons ejusdem generis with a district surveyor, that is, persons having an official duty. In an Act imposing on unqualified persons navigating "any wherry, lighter, or other craft," the last word would include only vessels of the same kind as wherries or lighters, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le point on the rate mentioned against that item, could not be accepted.
Keeping the above principles in mind, we shall grapple with our task. It may be noticed that the definition of the expression "toilet preparations" takes in any preparation which is intended for use in the toilet of the human body or in perfuming apparel of any description or any substances intended to cleanse, improve or alter the complexion, skin, hair or teeth and includes deodorants and perfumes. For a proper understanding of the definition the key words are "toilet of the human body". The dictionary meaning of the term "toilet" may be noticed here to comprehend the meaning of those words. The meaning of "toilet" in Webster's Comprehensive Dictionary of the English Language (2003 Edition) is as follows :
"toi-let - 1 A fixture in the shape of a bowl, used for urination and defecation. 2. A lavatory or watercloset; also a bathroom. 3. The act or process of dressing oneself; formerly, especially of dressing the hair. 4. Attire; toilette, also, a toilette or costume, - adj. Used in dressing or grooming: toilet articles [ X X X X Extracts X X X X X X X X Extracts X X X X ..... d to therein is in relation to human body and the said words 'perfuming apparel of any description' are also used in relation to human body. It is, therefore, clear to us that the expression "toilet of human body" postulates such preparations falling within the meaning of perfumery, cosmetic and toilet preparation as are meant to be applied to human body.
The phrase 'containing alcohol, opium Indian hemp or other narcotic' is an adjectival phrase which qualifies perfumery, cosmetics and toilet preparations. The effect of Note 1(d), in our view, would, therefore, be that if a preparation in the nature of perfumery, cosmetics and toilet preparation falls within the meaning of the MTP Act and contains alcohol or opium or Indian hemp and other narcotics, it would get excluded from the purview of Chapter 33. However, it does not follow that a preparation of the description of perfumery, cosmetics and toilet preparations containing alcohol etc. but not covered by the MTP Act, would also get excluded from Chapter 33 for the sole reason that it contains alcohol. Indeed a careful reading of Clauses (c) and (k) of Section 2 and Item 4 of the Schedule of the MTP Act discloses that what is ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts is in households, offices, restaurants, airport lounges and other public places. If they can also be used in the toilets for human beings, it would make no difference because the fact that the products can as well be used in the toilets for human being as also in other places will be of no consequence. We, therefore, conclude that Note 1(d) read with Notes 3 and 4 does not exclude the products from Chapter 33.
Now, we shall read Heading 3307 of the Tariff Act, which is in the following terms :
Tariff item
Description of goods
Unit
Rate of duty
3307
Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included, prepared room deodorizers, whether or not perfumed or having disinfectant properties
3307 10
-
Pre-shave, shaving or after-shave preparations
3307 10 10
---
Shaving cream
Kg.
16%
3307 10 90
---
Other
Kg.
16%
3307 20 00
-
Personal deodorants and anti-perspirants
Kg.
16%
3307 30
-
Perfumed bath salts and other bath preparations
3307 30 10
---
Bath oil (t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of the nature of personal application, incense sticks or agarbattis are goods of a different character altogether".
And it was held that having regard to articles included in Item 36 of the First Schedule, under the heading, "Cosmetics and toilet preparations", the meaning of "perfume" cannot be extended to include agarbattis.
Mr. Gulati has rightly relied upon an order of the Hon'ble Supreme Court dated 10-12-2004 dismissing Civil Appeal No. 5707 of 2004 [2005 (184) E.L.T. A121 (S.C.)] (Sonic Electochem Ltd. v. Commissioner) against the CESTAT Order No. 218/2004-NB(C), dated 5-3-2004, wherein the Tribunal held that Air Purifier intended to be used in room, toilet, bath room was classifiable as Air Purifier under sub-heading 3307.49 of Central Excise Tariff Act.
Another case cited by Mr. Gulati relates to "Jet fresh" and "Jem fresh" also supports our view. In that case the CESTAT by its order dated 7-4-2000 held that those goods were primarily used as Air Purifier although they might incidentally act as a moth repellant and were for continuous use, unlike insecticides, would be classifiable under sub-heading 3307.49 of the Tariff Act. Against that order, the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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