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TMI Blog2005 (3) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... pes of toothpastes and dental cleaners bearing brand name and trade name of their customers for example Close up Red, Close up Blue, Close up Green, Close up Whitening and Pepsodent, Signal, Aim etc. falling under Chapter 33 of the Central Excise Tariff Act for which they hold a proper registration and were discharging duty on 'toothpaste' and 'other dental cleaners' cleared by them. They also availed benefit of Modvat credit. Before effecting the manufacture and clearance of any of their goods, they obtain appropriate registration with the Food and Drug Control authorities as required for "toothpaste", they submit detailed manufacturing processes for the various products. 1.3 For the financial years 1998-99 and 1999-2000, the effective ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted clearances of "Close up Whitening Dental Cleaner" on payment of duty under Heading 3306.90 for the period July 2001 to September 2001. The Preventive Officers visited their factory on 25-9-2001, verified the manufacturing facility and the processes and list of inputs for all the items and brands and came to an opinion that "Close up Whitening Dental Cleaner" would also be covered under Heading 3306.10 and should discharge duty as tooth paste. According to this opinion, they effected detention of full quantity of such "Close up Whitening Dental Cleaner" manufactured and lying in the factory BSR duly accounted under Rule 10 and ordered its seizure on 4-10-2001. They were served with the Show Cause Notice dated 21-3-2002 alleging that 'Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hbrush, whether for cleaning or polishing the accessible surfaces of teeth or for other purposes such as anticaries prophylactic treatment. (2) Denture cleaners, i.e. preparations for cleaning or polishing dentures, whether or not they contain agents with abrasive properties." A perusal of the HSN Notes would indicate that all three types of 'Dentifrices' are recognised as (i) 'Toothpaste', (ii) 'Other preparations for teeth', and (iii) 'Denture cleaners'. The Note further explains that "Dentifrices" to include "toothpaste" and "other preparations for teeth" whether for cleaning or polishing the assessable surface of teeth or for other purposes such as Anticaries prophylactic treatment. The Note also enumerates tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meet the specification of Bureau of Indian Standard. The Bureau of Indian Standard for toothpaste, is as per specification under IS6356-1993 Second edition. It is also on record that the entity 'Close up whitening - dental cleaner' does not meet the said IS specification for toothpaste and also on record that FDA has issued a licence for the said product and its manufacture not as a toothpaste but as 'Close up whitening - dental cleaner'. It commenced production with effect from July 2001. Since it did not meet with the ISI specifications for toothpaste it was not recognised by the FDA as well as the Bureau of Indian Standard as 'toothpaste'. The entity could not be marketed and brought for sale and purchase as toothpaste. Relying on the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaners which reads as under is considered; "(i) the difference in raw materials used for Close up Whitening and Close up Red/Blue/Green is the additional presence of 2.8% and 0.2% w/w Silicon Agglomerate and Bluer Agglomerates respectively in Close up Whitening and absence of 0.1% w/w 2,4,4 Tri Chloro 2 hydroxy Diphenyl Ether in Close up Whitening in comparison with Close up Red/Blue/Green. (ii) The difference in product form between Close up Red/Blue/Green and Close up Whitening is the presence of "Uniformly dispersed blue speckles." (iii) The manufacturing process of Close up Red/Blue/Green in comparison with Close up Whitening is the same except one additional step of 'addition of silica agglomerates' (to get uniformly dispersed speck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as acceptable to the department. It was classified under a different name for all these years when the rate of duty under Heading 3306.90 were higher than under Heading 3306.10, mere change of duty and the brand name of the product, cannot be reason to alter classification. (f) The goods seized in the factory were entered in the records and even if the classification was doubted by the Preventive Officers, there was no reason to call for their reclassification or confiscation and redemption fine as arrived at by the ld. Commissioner. The classification of the goods and the rate of duty and valuation would be applicable at the time of removal of such goods from the factory and confiscation therefore ordered can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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