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TMI Blog1990 (1) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... received an intimation dated 10-12-1979 from the Department that they were not required to send monthly returns. Samples of both items were drawn by Central Excise Department on 4-1-1980. Factory premises of the respondent were again visited by the Central Excise Officers on 16-4-1984 & 17-4- 1984 and stock of O.B.M. oil valued at Rs. 90,458.40 was seized on the plea that same was manufactured without valid licence. They were released on superdginama after drawing representative sample. No stock of E. Oil was found. After some enquiry and recording of statements show cause notice dated 30-6-1984 was issued alleging that the respondent contravened provisions of Rules 174, 49, 52(A), 174(D), 173(C), 173(G), 9(1) and 53 read with 226 of Central Excise Rules, 1944 inasfar as they : (i) suppressed the facts and mis-represented that their product did not contain any perfume and so products were exempt from levy of excise duty even though the two oils were not hair oil and the criterion of absence of perfume was not relevant. (ii) they manufactured the above product without applying for/obtaining valid C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the Collector (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Collector (Appeals), as the case may be as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding Appeals, including the provisions of sub-section (4) of section 35B shall, so far as may be apply to such application." So it can be seen from the above that such application made to the Appellate Tribunal has to be treated as an appeal and all the provisions of sub-section 4 of section 35B shall apply to such application. Section 35B sub-section 4 reads as under :- "On receipt of notice that an appeal has been preferred under section, the this party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within fortyfive days of the receipt of the notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration No. CLD/30-VP, dated 17-3-1980. This sample was in the form of colourless liquid. The sample of 'Olemessa' received earlier was in the form of light yellow liquid and no perfume was perceptible. This was also tested simultaneously under laboratory registration No. CLD/27-VP dated 21.1.1980. Both these samples were found to conform to the specifications for Arachis oil (Groundnut oil). 'E. Oil' (Laboratory Registration No. CLD/128-VP/21-1-1980) The sample of this product as received was in the form of light brown liquid having odour of sandal wood type. It was ascertained during the visit that the composition of this product was Arachis Oil 61%, Olive Oil 20%, Kunkumadi Oil 15% and Vitamin E. liquid 4%. The four ingredients are thoroughly mixed in the mixing vessel and the resultant product is filled up in small plastic bottles by means of vacuum filling machine. Samples of Olive Oil and Vitamin E. liquid (both of which are imported) were drawn and tested under laboratory registration Nos. CLD/31-VP and CLD/33 dated 17-3-1980. These were found to have characteristics of Olive Oil and Vitamin E. (Tecopherol Acetste) respectively. The sample of 'E Oil' also gave te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents and submitted his report as above and also submitted following conclusions :- "The significance of the query whether perfumed is not clear. Both the products are advertised as massage oil and not as hair oil. In view of the advertised use these two E. products may merit classification as "Preparation for the care of Skin." When officers of the Department visited the factory they again took samples and forwarded them to Chemical Examiner's Office. Report is put on record (Page 81) and in Annexure 'A' to the Show Cause Notice it is stated as under :- "Sample of 'Olemessa baby massage Oil' drawn on 27-4-1984 was sent to the Chemical Examiner, Central Revenue Control Laboratories, Pusa Institute, New Delhi for analysis in the light of statement dated 2-5-1984 of Shri Raj Kumar Virmani and pamphlets issued by the manufacturer. The Chemical Examiner had reported that on the basis of the analytical formula both the samples are similar i.e. (Groundnut oil, Refined groundnut oil). Both the samples have been coloured with small quantity of Funchon yellow. In view of high price and advertised use of the product as 'Baby massage oil-safest natural massage oil for the tender skin of yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite of being hydrogenated or hardened. The mere fact that chemical changes occur during hydrogenation would not take them out of the purview of Tariff Item 12 inasmuch as they remain oils in their behaviour, structure and use and, therefore, their essential character as oils remains the same before and even after hydrogenation." 2. Collector of Central Excise v. Jayant Oil Mills Pvt. Ltd. reported in 1989 (40) E.L.T. 287 S.C. wherein it is laid down as under :- "Oil would remain oil if it retained its essential properties and merely because it had been subjected to certain processes would not convert it into a different substance. Accordingly edible rice bran oil falling under Tariff Item 12 CET would even after extra hardening or the process of hydrogenation will not fall under Tariff item 68 but will continue to fall under Item 12 for two reasons - firstly the essential properties of the rice bran oil are not changed even after process of hydrogenation/hardening as there is hardly any distinction between vegetable oil in liquid form and hydrogenated oil which is hardened with a melting point higher than 41°C and secondly resort to the residuary entry 68 cannot be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also to be noted that some edible oils are commonly used for the purpose of massage also eg. mustard oil, coconut oil, etc. There is no direct evidence on record that groundnut oil is also used for massage purposes but then it is not the contention of the Revenue that the colour added therein would make oil fit for the purpose of massage. So even though oil is marketed as massage oil and even though it would suggest change in the character and use of the oil, still, however it would continue to remain oil. Moreover T.I. 12 covers VNE oils, all sorts, and it is not necessary that to be included therein the oil in question should remain edible. So in view of the decision in Jayant Oil Mills case (supra) the product in question should have been classified under T.I. 12. In this connection reliance can also be placed on following ratio of Bharat Forge and Press Industries (P) Ltd. v. Collector of Central Excise 1990 (45) E.L.T. 525 (S.C.) "It is also clear that it is of no consequence whether the pipes and tubes are manufactured by rolling, forging, spinning, casting, drawing, annealing, welding or extruding. It is true that initially pipes and tubes may be obtained from sheets, bille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents were also adding anti oxidant in the preparation. It is also noted that the product has all the characteristics of a "preparation". Character and use of the product also changed. So, it was rightly held to be "manufacture". But it is contended by the respondents that the same was recommended for use as cure for pimples on the skin and should be treated as Ayurvedic medicine for wrinkles. In this connection the learned Collector has rightly observed as under :- "The party in reply to the show cause notice has admitted the product to be a preparation but has said that the same is for cure of the wrinkles and pimples on the skin and should be treated as ayurvedic medicine. Only such of the medicines fall under T.I. No. 14E which are for the internal and external treatment of or for the prevention of ailment in human beings or animals - wrinkles or pimples on a skin is never considered to be an ailment. Whatever is applied on skin for removal of wrinkles or pimples will fall under the category of care for the skin. Moreover, this product is being sold by the notice as a product for care of the skin. This product is correctly classifiable under T.I. No. l4F(i)". After advanci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts was not known to the Department and so the questions of not obtaining and not applying for licence and not maintaining statutory records and removing goods clandestinely simply do not arise....The Department was in a position to know whether the products were covered under any specific tariff item and whether they were excisable. There was no suppression on the part of the respondent. They cannot be alleged to have committed any fraud. So invoking larger period of limitation was not permissible. So demand for duty beyond 6 months from the date of service of notice was not proper. In the circumstances penalty was not warranted. 16. In view of above discussion we pass the final order as under:- (a) In appeal number E/2688/85-C preferred by the revenue the impugned order is modified to the extent that O.B.M oil would be classifiable under T.I. 12 during the relevant period but would not attract any Central Excise Duty. (b) Cross objections are partly upheld, and (i) Classification of E. Oil decided upon by the adjudicating authority is upheld but demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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