2004 (12) TMI 92 - SUPREME COURT

Whether the respondent's products, namely, turmeric skin cream and vajradanti toothpaste and tooth powder are classifiable under Chapter 30 of the Central Excise Tariff Act or under Chapter 33 of that tariff?

Held that:- Although the adjudicating authority had found in the course of the hearing that the market survey indicated that the product in question was known as a cosmetic we do not go into the question as this was not the ground on which the show cause notice was issued. The show cause notices having proceeded on a misapprehension of the tests laid down in Shree Baidyanath's case [1995 (3) TMI 109 - SUPREME COURT OF INDIA], the same cannot be sustained.

The appeals are accordingly dismissed without any order as to costs. It will be open to the Department to take such tests if otherwise so entitled in respect of the products for the purpose of classifying the products under the appropriate tariff heading as they may be advised.