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2022 (8) TMI 826 - AT - Central ExciseClassification of the goods manufactured by the appellants - chewing tobacco - classifiable under heading 24039910 as claimed by the appellants or its jarda scented tobacco classifiable under heading 24039930 as claimed by the revenue? - HELD THAT:- There is no indication in the test report as to what is the definition of jarda scented tobacco and chewing tobacco and under which parameter test of sample conducted viz. Moisture content, Nicotine, Ash etc. as provided in the BIS specification - the conclusion arrived at by the Chemical Examiner, CRCL that ‘sample has the characteristics of Jarda Scented Tobacco’ in the test reports (supra) is without any basis and since the CRCL report which has been relied upon by the revenue for changing the classification is not as per the BIS specification, the reliance placed on it by revenue as well as by the adjudicating authority for changing the classification is totally misplaced. The chemical examiner has failed to provide the parameters set out for jarda scented tobacco during her cross-examination. Apart from the test report, the revenue has not adduced any evidence to support its proposal to classify the impugned product as jarda scented tobacco and not chewing tobacco. In the present case neither in the show cause notice nor before the adjudicating authority, it is the case that the appellant have used ‘jarda scent’ in their product. Even the statements relied upon by the department nowhere mention that ‘jarda scent’ has been used by the appellant in their product. The learned commissioner mistook the pleasant odour as mentioned in CRCL test report as scent which is totally different from ‘jarda scent’, an essential ingredient for manufacturing jarda scented tobacco - the learned commissioner has erred in not resorting to the Trade Parlance Test in the facts of the present case by erroneously observing that as the product can be classified as per the contents, there is no need to resort to the parlance test. In Trade parlance i.e. from packaging and presentation, sales and distribution and till its consumption by the ultimate consumer the product in issue is known as chewing tobacco only. The learned commissioner has also overlooked that the contents of the product in dispute have been prescribed under the Tariff and therefore the classification cannot be based on contents. Admittedly the pouches of the products in including presentation, sales, distribution and usage issue described the product as ‘chewing tobacco’ and in Trade Parlance it is known as ‘Chewing Tobacco’ only. The manufacturer, distributor and the consumer, everyone understands and consume the product as chewing tobacco only. The Tribunal in the matter of M/S. FLAKES-N-FLAVOURZ VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [2014 (9) TMI 664 - CESTAT NEW DELHI (LB)] has held that in the absence of anything to the contrary, the product in question has to be treated as per the description given by the manufacturer on outer cover of pouch, common parlance and established practice as the chewing tobacco or zarda scented tobacco have not been defined in the tariff. In view of the facts of this case the classification given by the appellant is proper and hence the impugned order is set aside - Appeal allowed - decided in favor of appellant.
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