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2015 (8) TMI 102 - CESTAT NEW DELHIClassification of goods - classification of the coconut oil packed in the packings of 200 ml or less - Classification under Heading 1513 or under Heading No.3305 - Edible oil or hair oil - Held that:- there are a series of decisions of the Tribunal wherein the Tribunal after examining the Tariff Heading No.1513 pertaining to Coconut Oil and Heading No.3305 which covers Hair Oil and the relevant Chapter and Section Notes examined the question of classification of Coconut Oil in the packing upto 200 ml, which are not marketed as Hair Oil and held that just because the retail packs are of 200 ml. of less, the same cannot be presumed to be meant for use as Hair Oil and would not be classifiable under Heading No.3305. - As regards the coconut oil packs, in question, containing TBHQ, an antioxidant, its addition is permitted under Prevention of Food and Adulteration Act, 1954 to improve its shelf life by preventing its oxidation and hence rancidity. The addition of antioxidant does not make the coconut oil as suitable for use as Hair Oil. Even in terms of Board s Circular No.166/77/95-CX dated 29.12.95, the use of anti-oxidants as specified under Rule 59 of the Prevention of Food Adulteration Rules, 1955 will not alter the classification if they are meant only for preventing the rancidity of the oil. No evidence has been produced by the Department to show that the addition of anti-oxidants in coconut oil will make the same more suitable for use on hair. Denial of refund claim - Pre mature refund claim - Held that:- even if the writ petition filed by the appellant before Allahabad High Court, challenging the Board s Circular dated 3.6.2009, has now been transferred to the Apex Court where it is still pending and even if at some point of time, the appellant had addressed a letter to the Department that they would file refund claim as and when the matter is decided in their favour, in our view, they are at liberty to file the refund claim even though the matter is still pending before the Apex Court, more so, when the Hon ble Madras High Court in its judgement in the case of VVD & Sons (Pvt.) Ltd. (2014 (12) TMI 653 - MADRAS HIGH COURT) after considering the Board s Circular dated 3.6.2009 has quashed the same observing that the same is arbitrary and contrary to the provisions of Section 37B of the Central Excise Act, 1944 and hence null and void. - Decided in favour of assessee.
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