Home Case Index All Cases GST GST + AAAR GST - 2020 (1) TMI AAAR This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (1) TMI 882 - AAAR - GSTClassification of goods - Odomos - whether classified under Chapter 38 of Customs Tariff Act and is classified under HSN 3808 91 91 or otherwise? - challenge to AAR decision. Whether the order passed by the Authority for Advance Ruling is illegal and not sustainable because the authority ignored the comments submitted by the department in response to the Application filed by the Applicant? - HELD THAT:- The ruling has been given by the AAR by way of a speaking order and there is no evidence that it has been passed in an arbitrary manner. Therefore, the impugned Order passed by the Authority cannot be held unsustainable on this ground. Whether the impugned order is illegal as the same has not followed the binding precedent for the same product as decided by Hon'ble Allahabad High Court in the case of COMMISSIONER OF SALES TAX VERSUS BALSARA HYGIENE PRODUCTS LTD. [1985 (12) TMI 366 - ALLAHABAD HIGH COURT]? - HELD THAT:- We have gone through the cited judgment of the Hon'ble High Court in the case of M/s. Balsara Hygiene Products Ltd. and observe that it was passed in the context as to whether the said product fell within the ambit of Entry No. 29 of Notification No.ST-II-5785/X-10(1)-80-U.P. Act XV /48-Order-81, dated 7-9-1981 issued under Section 3A of the U.P. Sales Tax Act, 1948. As far as the third issue raised by the Applicant is concerned, i.e., that the order of the AAR was based on extraneous considerations, we observe that the appellant has failed to detail such alleged extraneous consideration, nor do we find anything in the impugned order which may give rise to such an inference. We, therefore, disregard this ground, apparently being an unsupported and vague charge. Classification of product Odomos? - HELD THAT:- Undoubtedly, the description under Heading No. 3808 91 '91, i.e., "Repellants for insects such as flies, mosquito" is far more specific as compared to the description under the other heading under consideration, i.e., Heading No. 3004 90 99 which is "Other" (meaning medicaments other than all those explicitly specified in the other sub-headings of Heading No. 3004). Evidently, the latter heading is a residual classification while the former is specific and conforms to the description of the goods adopted by the appellants themselves for the purposes of packing as well as advertisement and publicity. The Hon'ble Supreme Court also, in their judgment in the case of HPL CHEMICALS LTD. VERSUS CCE, CHANDIGARH [2006 (4) TMI 1 - SUPREME COURT]], have held that specific heading is preferable over residuary heading for classification. Therefore, in terms of the aforesaid rules for interpretation, Heading No. 3808 91 91 will prevail over 3004 90 99. The appellant declare prominently on the packing of the goods under reference that it is "mosquito repellent cream". The advertisement and publicity of these goods is also done as a mosquito repellent. It would also not be out of place to mention that the appellant's own website www.dabur.com, describes Odomos as a 'mosquito repellent' - the market identity in common parlance of the subject goods is as a mosquito repellent and their usefulness in preventing mosquito borne diseases (again derived from their characteristic quality of being a mosquito repellent) is of a subsidiary/ supplementary nature. Also, the substance DEET is mentioned in the schedule to the "Insecticides Act, 1968" as an insecticide and by corollary, its improved version, i.e., NNDB would also be an insecticide. In this context, it is pertinent that mosquito repellents are classified at Heading No. 3808 91 91 of the Customs Tariff as a subcategory of insecticides. Thus, this again indicates that even by applying the yardstick of chemical composition, Heading No. 3808 91 91 is most specific for the classification of the subject product. All the factors relevant for classification under the Customs Tariff lead to the classification of the Applicants' product "Odomos" under Heading No. 3808 91 91, be it the rules for interpretation of the said Tariff, the common parlance test, its chemical composition or its usage and way of working. Hence, Odomos is a mosquito repellent and has to be classified under Chapter Heading 3808 91 91 of the Customs Tariff Act. The ruling of AAR upheld.
|