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TMI Blog2005 (4) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-2003 and Notification No. 40/2002-Cus., dated 12-4-2002 is available to the product 'Dant Mukta' imported by them. 2. Shri B.L. Narasimhan, learned Advocate, submitted that principal raw-materials for the impugned product, 'Dant Mukta' are pipli, tomor seed, sunthi, clove oil, black pepper, roasted haritaki, clove leaf oil, camphor, kasni powder, menthe oil, sugandhit dravya and garric powder, that a similar product 'Dant Shakti' having the very same ingredients was initially classified as medicament on importation from Nepal; that the Department contended that the product is tooth powder meriting classification under heading 33.06; that the matter was finally decided by the Appellate Tribunal in the case of Dabur India Ltd. v. C.C.E., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product is neither tooth powder nor tooth paste which is covered under sub-heading 3306.10; that the product has the essential characters of the final product, namely, Dant Manjan and is more akin to tooth powder which has also been accepted by the Department in the proceedings before the Tribunal in the case of Dabur India v. C.C.E., Meerut, 2000 (36) RLT 639 (Cegat); that in that case, the Adjudicating Authority in adjudication Order dated 22-11-94, has held that the ingredients used in the manufacture of Dant Shakti are almost same which were used in the manufacture of Dabur Lal Dant Manjan and the impugned product has the characteristics/properties of tooth powder; that nature of tooth powder has been attained by the product in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e since it only says that 'Dant Mukta' could be classified as dental hygiene and it does not say that the product is tooth powder, is, therefore, perverse, since in this clarification, the Ministry of Finance has clearly mentioned that the earlier Order of the Tribunal holding the product 'Dant Shakti' as tooth powder has been accepted by the Board and it was indicated by the Ministry that the Department should not change its stand only because of Revenue considerations; that the subject of the said letter was itself "Classification of 'Dant Mukta' under heading 3303.39 - CET or 3306.10 of CET". The reliance has also been placed on the decision in the case of C.C.E., Chandigarh, v. Dabur India Ltd., 2004 (170) E.L.T. 324 (T) wherein the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-8-04 denying the exemption under Notification 6/02-C.E. is not an appealable Order; that the said finding is not correct since they were prejudiced by the said Order and were forced to pay C.V. duty and as such they have the right to file appeals. He has relied upon the decision in the case of Gujarat Ambuja Cements Ltd. v. C.C.E., Chandigarh (Final Order No. 432/2005, dated 28-3-2005 [2006 (197) E.L.T. 39 (T)] wherein the communication dated 24-2-2005 informing the appellants therein that the benefit of Notification No. 67/95-C.E. is not available, was held to be in the nature of an Order affecting the rights of the party. 5. Countering the arguments, Sh. D.N. Choudhary, learned S.D.R., submitted that the earlier decisions, relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Sub-heading 3306.90 as "Other"; that as the impugned product is used as raw-material for the manufacture of tooth powder it cannot, by itself, be classified as tooth powder meriting classification under sub-heading 3306.10 and it has to be classified as "OTHER" in sub-heading 3306.90. The learned S.D.R., finally, submitted that the Notification No. 6/03-C.E., dated, 1-3-2002 (Sl. No. 63) only exempts tooth powder and as the impugned product is only a raw-material for manufacture of tooth powder, the benefit of Notification cannot be extended to the impugned product. In this regard, he relied upon the decision in the case of Rajasthan Spg. Wvg. Mills Ltd. v. C.C.E., 1995 (77) E.L.T. 474 (S.C.) wherein it has been held by the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in the submissions of the learned S.D.R. that the fact that the impugned product is used as raw-material in the manufacture 'Dant Mukta' was not brought to the notice of the Tribunal in Dabur India case. It is specifically mentioned in Dabur India case that the 'Dant Shakti' is ultimately for manufacture of Dant Manjan (tooth powder) used for dental hygiene and that the impugned product has characteristics/properties of tooth powder. Rule 2(a) of the Interpretative Rules clearly mentions that any reference in a heading to goods shall be taken to include a reference to those goods incomplete or unfinished, provided that the incomplete or unfinished goods have the essential character of the complete or finished goods. As the impugned produ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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