2005 (7) TMI 243

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..... Ltd. The Department claims the classification of the product under Chapter Sub-Heading 3926.90 of the Central Excise Tariff Act, though right from 1986 to 1999, it was classified under 5601.10 of the tariff. According to the Adjudicating Authority, the weight of P.P. Sticks (article of plastics) is predominant as compared to the Buds, which are made of wadding of cotton. 3. As per the Order-in-Original, the essential character of the Johnson Bud is not determined by the cotton wadding alone, rather both wadding and the P.P. Sticks determine its essential character in equal measure. There being no other heading in the Tariff, which covers the goods specifically either by description or application of the use, the classification has to be .....

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..... The classification as ordered by the Adjudicating Authority "as an article of plastic" is therefore, contrary to the law declared by the Supreme Court as to what can be regarded as an article of plastic. Since the essential character viz. use of the product is dependent on the cotton swabs the appropriate classification of the product is under Sub-Heading 5601.10. Even in terms of the provisions of Rule 3(c) of the General Rules of Interpretation to the Tariff since Chapter Sub-Heading 5601.10 occurs later than Chapter Sub-Heading 3926.90, the appropriate classification of the product in terms of this provision would be under Sub-Heading 5601.10. In the case of CCE v. Moti Surgi-Chem Pvt. Ltd. as reported in 1999 (113) E.L.T. 450 (Tri.), a .....

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..... , comprising polypropylene stick with bud of cotton wadding fixed at both its end. To use it, it is inserted into the ear cavity. The selection of cotton wadding at the end of the article is with reference to the delicate nature of the organs inside the ear cavity as well as the functional need of sticking the ear wax to it for its removal. Similarly, the selection of polypropylene as the material of the stick is in view of the flexibility it affords so that the delicate inner organs of the ear are not damaged during the process of removal of the ear wax. From the above, it appears that both the wadding and the PP Stick determine its essential character in equal measure. Hence the said product merits classification under Chapter Sub-Heading .....

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