9911796707
TMI Blog2001 (10) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-heading 2106.00 of Central Excise Tariff Act, 1985. They were issued with show cause notices alleging that they had manufactured and cleared "Chewing Tobacco/Zarda" and the same was liable to be classified under heading 2404.49 and after 1996-97 under chapter sub-heading 2404.40. The allegation was that the same was captively used in the manufacture of 'pan masala' within their factory. 3. The appellants took the view that the said product was an intermediate product and not capable of consuming and it was in a non-consumable nature/character. It was stated that the intermediate product had to undergo several other processes for the purpose of making it consumable. They contended that the item being not in a marketable stage can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raight away as it contains more perfumes. The reason given by Shri Hanumantha Rao is quiet contrary to the claim of Dhariwal who claim that the product is not consumable as it contains an over dose of quimam. Shri Vijay Kumar states that to the best of his knowledge it cannot be consumed as such and he did not give any reasons as to why it cannot be consumed. It is surprising to note that none of them tasted the sample as seen from the record of personal hearing but offered their opinion peremptorily on the chewability or consumability of the same. 40. It is well known that in the eye of law, an expert is one who has acquired specialized knowledge, skill or experience in any branch of science, trade or profession. As observed by the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995 deposed that the scented/ Chewing Tobacco received from their own unit at Pune and the Chewing Tobacco processed by them in their factory at Hyderabad from April, 1995 were one and the same; that Dhariwal started processing the said Chewing Tobacco from April, 1995 and that during the earlier period from November, 1994 to March, 1995 they used to receive it from their Unit at Pune. It is seen that M/s Dhariwal Tobacco Co. (P) Ltd., Pune, supplied the Chewing Tobacco on payment of duty under Central Excise Invoice No. 1044, dated 15-12-1994 to their unit at Hyderabad for use in the manufacture of Pan Masala, i.e., Manik Chand Gutkha. ) 4. At the time of hearing the stay applications, the ld. SDR was directed to call for a report from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thol and Saffron water besides jaggery juice and flavouring essence. So, their item was different from that of the item dealt with in the Apex Court judgment, as there was no flavouring essence, spices and jaggery added in their case. Therefore, it was a different item and not in a consumable stage. Ld. Counsel also pointed out to the Commissioner's finding which have been recorded in Para 39 about the revenue witnesses categorically stating that the item cannot be consumed unless the goods are in marketable condition. The intermediate product cannot be subject to levy of duty. 6. The Bench at this stage posed a query to ld. SDR as to whether he has further report in the matter regarding orders passed by the Commissionerates of Pune and Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intimated to ld. SDR that the orders passed by the Commissioners of Central Excise, Pune and Vadadora have been accepted by the revenue in appellants own case. In this circumstance, the Bench cannot take a differing view in so far as appellant's unit located in Hyderabad is concerned. Revenue has not established that intermediate product is consumable and it can be marketed. Merely because of some product arises during the intermediate stage, it cannot be considered as a fully manufactured product, unless it is shown that it has got marketability and is consumable. Appellants clearly have brought out through revenue witnesses that the intermediate product cannot be consumed. However, the Commissioner in Para 39 of OIO No. 30/2000 has not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssence including spices. Therefore, it cannot be said that the item is similar to the one referred to by the Apex Court in Bell Mark Tobacco Co. case on which goods, the Commissioner is relying for confirmation of demands. 10. We have also considered the prayer of appellants that demands are barred by time. The entire manufacturing process was within the knowledge of the department and the final product was cleared on payment of duty. Therefore, it cannot be said that the department did not have knowledge of the manufacturing process. Appellants have been paying duty on the final product and the manufacturing process has been brought to the notice of the department. Therefore, the plea of the appellants that there was no suppression of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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