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2013 (3) TMI 259 - CESTAT NEW DELHIExemption under Notification No. 56/2002-C.E. denied - unit of the assessee is in the State of Jammu & Kashmir - dispute on Gulabari, Kewra Water and Shilajit capsules for the period from April, 2004 to March, 2008 - Held that:- So far as the Kewra water and Gulabari are concerned, it is found that while gulabari, which is nothing but rose water, is specifically covered by sub-heading No. 3303 00 20, Kewra water is specifically covered by sub-heading No. 3303 00 30 of the tariff. While the expression “aqueous solution of essential oil” in Heading 3301 is a general term, sub-heading No. 3303 00 20 and 3303 00 30 specifically cover ‘rose water’ and kewra water respectively. In terms of Rule 3(a) of the General Rules for Interpretation of the Tariff the heading which provides the most specific description is to be preferred over the heading providing a general description. Since sub-heading 3303 00 20 and 3303 00 30 specifically cover the rose water and kewra water respectively and since the goods, in question, are nothing but rose water and kewra water, the goods in question would have to be held as specifically covered by Heading No. 3303 not under heading 3301. Moreover, gulabari (rose water) and kewra water are the products commercially different from rose oil and kewra oil with different name and usages and, therefore, the process carried out by the appellant amounts to manufacture and as such, the duty had been correctly paid by the appellant in respect of these products and exemption under Notification No. 56/2002-C.E. has been correctly availed. Shilajit capsules - According to the Appellant, the formulation of shilajit capsules being manufactured is different and is not based on the formula prescribed in the standard books on ayurveda specified in the first schedule to the Drugs and Cosmetics Act. Moreover, also find that the Department does not refute, that in Sahibabad unit of the appellant, duty is being paid on the same product without availing exemption under Notification No. 3/2005. Besides the above points while the appellant’s stand is that they are entitled for refund of duty to the extent paid through PLA after exhausting the Cenvat credit in both the cases, there would be no revenue to the Government and as such, prima facie, there is no difference between the stand of the Department and the stand of the appellant. It is also not the case of the Department that the products, in question, are being used by some other manufacturers as inputs in respect of which in accordance with the provisions of Rule 12 of the Cenvat Credit Rules, 2004 those manufacturers are availing full Cenvat credit as if no part of the duty was exempt. Thus, even if the Department’s stand is accepted, it will be a revenue neutral situation. Merits in the appellant’s plea for waiver from the requirement of pre-deposit of duty demand, interest and penalty - stay applications are allowed.
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