TMI Blog1999 (10) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... an soap), surface active preparation, washing preparation (including auxiliary washing preparation) and cleaning preparations; whether or not containing soap which attracted a basic excise duty at the rate of 30% ad valorem. Later on appellants sought to amend the classification to Chapter sub-heading No. 3401.10 attracting basic excise duty at the rate of 25% ad valorem. Initially classification list filed by the appellants on 28-4-1992 was approved by the Assistant Commissioner. The appellants claimed that its revised classification under Chapter sub-heading 3401.10 was justified on the ground that their product was a soap which was evident from its name and hence rightly classifiable under Chapter sub-heading 3401.10. Consequent to bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apter Heading 3304.00 as preparations for the care of skin . He relied on Chapter Note 2 of Chapter 34 as well as the directions for use of the product. The directions for use of the product stated : (1) Wet face and neck. Squeeze enough product to cover coin into palm. (2) Work into lather. Gently massage lather over face concentrating the problem areas and (3) Rinse thoroughly and pat dry with clean towel . 5. The Assistant Collector held that from the directions for use, it was clear that CDSW was to be applied to act on pimples and other harmful substances and also to keep the skin clear and bright. He also observed that in general, skin care preparations will contain soap in addition to the ingredients of skin care which rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and such products fall under Chapter Heading 33.04. He observed that the product was designed primarily to cleanse the skin and did not contain sufficiently high levels of active ingredients to be regarded as having a primarily therapeutic or prophylactic effect against acne. He also referred to HSN Explanatory notes to Chapter Heading 3304 in support of his conclusion. Further, Commissioner (Appeals) also observed that the recommended usage of the product suggested application of the product in a particular manner. Generally such guidelines and instructions are not found on the wrapper/cover of ordinary soap or toilet soap. The product under consideration was therefore, different. While it contains soap, it had also other ingredient as al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants that the corrigendum to the show cause notice issued by the Department on 26-11-1995 was invalid inasmuch as it totally changed the original show cause notice and the Department could not take an altoghether different stand than in the original show cause notice by issuing a corrigendum. Reliance was placed on the judgment of the Calcutta High Court in Jiban Saha v. S.K. Chatterjee (AIR 1961 Calcutta 195) wherein it was held that a second or revised notice enlarging the scope of first notice by taking advantage of the defence already disclosed by the parties in reply of the notice would be illegal and would be barred as analogous to res judicata. 18. Ld. Counsel also submitted that it was not permissible for the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revented from putting up its defence against the revised classification proposed by the said corrigendum. 10. We find that the decision of the Hon ble Calcutta High Court in Jiban Saha case (supra) relied by the appellants holding that revised notice issued for enlarging the scope of first notice by taking advantage of the defence already disclosed, would be illegal and barred as analogous of res judicata would be clearly applicable in the facts of the case. We also find that the reliance placed on the product literature by the Department in the cross-objection has also to be held impermissible in the light of the decisions in Toshiba Anand and Leukoplast cases referred to above. 11. As regards the issue of classification itself, we fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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