9911796707
TMI Blog1985 (9) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... is the classification of the product 'Keora Golap Paner 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) as per the trade notice an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 38.03% raw Tobacco)." The tariff advice of 12-9-1975 had already determined the classification of preparations in the nature of Paan M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of Tobacco or Chewing Tobacco within the definition as in the Central Excises and Salt Act.' (iv) In the appeal No. 157 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 response to queries from the Bench, she stated that the Central Board of Excise and Customs had not laid down any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequential 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 lower orders. In the circumstances, we have to leave the question of determining the period of refund to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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