TMI Blog1985 (9) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... r Dokta manufactured by the appellants- whether it came under item 4-II (5) Chewing Tobacco of the Central Excise Tariff or under residuary item 68 thereof. The product Dokta was specifically included in item 4-II(5) by the Finance Bill of 1984 w.e.f. 1-3-1984. The dispute before us relates to the period prior to 1-3-1984. 3. The appellants have described the process of manufacture of their Dokta in their appeal to us in the following terms :- Tobacco leaves are first cleaned of dust, stalks and stems and are reduced to flakes. These flakes are then mixed in an emulsion prepared out of Veligur (Molasses) and Katha (Catachu). After liquid Gur is drained, Gum is added and then decorted and fried Dhania, Panmouri (Sooff), Chandani, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir product Dokta on the basis of its tobacco content with effect from 5-11-1981 and not from 1-3-1975 in terms of the trade notice dated 5-11-1981 and that if the appellants had to say anything against such proposal, they may come for a personal hearing before him on 13-6-1983 along with all evidence. 13-6-1983 The appellants were heard by the Assistant Collector. They claimed that the effective date of classification should be from 12-9-1975, the date of the first tariff advice. 23-6-1983 The Assistant Collector adjudicated the matter holding that since the tobacco content in all the 3 varieties of Dokta manufactured by the appellants was less than 50%, they would not fall within the purview of item 4-II(5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the above de novo order of the Assistant Collector on classification as well as the order rejecting the refund claim. 5. After adverting to the process of manufacture of their Dokta as already extracted above, the appellants pressed for the following arguments before us during the hearing :- (1) Their product was only a Paan Masala or a Mouth Freshner. It could be chewed with Paan (Betel leaves) or without it. It was not chewing tobacco as its tobacco content was only 38.0%, as determined by the National Test House, vide the extract below :- Results of tests Raw Tobacco Keora Golap 1. Nicotine content (on dry basis) per cent by weight : 5.94 2.26 (This is equi- valent to 38 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... added to tobacco in the manufacture of Zarda like Scents or Colouring Substances does not seem to be material if the main ingredient after manufacture is tobacco. (iii) His Lordship s findings received support and was approved by another Judge of Calcutta High Court Mr. Binayaka Banerjee who laid down in Civil Rivision Case No. 3985 of 1960-Taraknath Gupta v. C.T.O. - Zarda (Chewing Tobacco) is tobacco manufactured into Zarda. The addition of aromatics of tasty substance with tobacco, so as to make Zarda fragrant or palatable retains the character of tobacco, if the tobacco be not denatured in the process of manufacture. If tobacco remains tobacco even though turned by manufacture into Chewing Tobacco, it comes within the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the position before us that any refund payable to them would have to be subject to the limitation contained in Section 11 B of the Central Excises and Salt Act, 1944. They stated that they had claimed re-classification retrospectively from 12-9-1975 through a revised classification list filed by them on 27-4-1983 and that prior to it they had filed a protest letter on 26-12-1981. 6. The learned Representative of the department stated that the methodology of test adopted by the National Test House, Alipore, Calcutta was not correct. It was common knowledge that Nicotine content in tobacco could vary. No standard Nicotine content in tobacco could, therefore, be presumed for deducing the tobacco content in the preparation Dokta . In respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the tariff. 8. The next question to decide is the period from which the appellants should get the consequential refund. The appellants have accepted before us that the refund payable to them would be subject to the provision of time bar in Section 11B of the Act. Even so we find that the facts on record before us do not help us to determine the precise period for which refund should be granted. The revised classification list on record does not bear any date. It is claimed by the appellants that it was submitted on 27-4-1983 but there is nothing on record to support it. The appellants claim that before that they had filed a protest letter on 26-12-1981. But neither the protest letter is on record nor is any mention of it found in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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