2004 (5) TMI 504 - AT - Central Excise

Summary

Issues:
1. Classification of the product "MOSQUITO SPECIALIST" under Chapter Heading 3808.10 of the Central Excise Tariff Act, 1985.
2. Interpretation of Notification No. 5/2001, dated 1-3-2001, entry at Sr. No. 37 regarding "mosquito coils, mats, and other mosquito repellents" for determining the assessable value under Section 4A of the Central Excise Act, 1944.

Issue 1: Classification of the Product
The issue at hand revolves around the classification of the product "MOSQUITO SPECIALIST" under Chapter Heading 3808.10 of the Central Excise Tariff Act, 1985. The product is described as a package in an 'Aerosols spray can' containing ingredients, which the Ld. Advocate argues are mosquito killers and not mosquito repellents. The contention is that the product does not function by heating or burning like mats and coils. However, the Ld. Jt. CDR presents a historical perspective, indicating that the product was previously known and understood as 'mosquito repellents' by both the assessee and others in the market. The Tribunal finds prima facie evidence supporting the product's coverage under the notification entry for 'other mosquito repellents.' The issue is deemed to require further examination and a final decision. Consequently, the appellants are directed to make a pre-deposit of Rs. 20 lakhs, with compliance due by a specified date to meet the requirements of Section 35F of the Central Excise Act, 1944.

Issue 2: Interpretation of Notification No. 5/2001
The second issue pertains to the interpretation of Notification No. 5/2001, dated 1-3-2001, specifically entry at Sr. No. 37 concerning "mosquito coils, mats, and other mosquito repellents" for the purpose of determining the assessable value under Section 4A of the Central Excise Act, 1944. The debate centers on whether the product "MOSQUITO SPECIALIST" falls within the scope of this notification. The Ld. Advocate argues that the product's functionality as a mosquito killer distinguishes it from traditional mosquito repellents like mats and coils. Conversely, the Ld. Jt. CDR highlights that the product had been previously recognized as a mosquito repellent in the market before the issuance of the notification. The Tribunal, while acknowledging the need for a detailed examination of this issue, directs the appellants to make a pre-deposit and comply with the specified requirements under the Act. The matter is scheduled for a regular hearing upon compliance, with the possibility of an early hearing based on a plea made by the appellants.

In conclusion, the judgment by the Appellate Tribunal CESTAT, Mumbai delves into the intricate issues surrounding the classification of the product "MOSQUITO SPECIALIST" and the interpretation of Notification No. 5/2001. The decision emphasizes the historical context of the product, the arguments presented by both parties, and the need for further examination before reaching a final conclusion. The Tribunal's directive for a pre-deposit and compliance reflects the procedural aspects involved in resolving these complex legal issues within the ambit of the Central Excise Act, 1944.