TMI Blog2010 (1) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... le Mazza (in short, dispute item ) is a taxable item or not. The disputed item is sold in a pouch having two parts one containing tobacco and the other pan masala . According to the petitioner, it is an item falling under entry against serial No. 82 of Schedule I to the 1994 Act. During the course of assessment for the period in question, the assessing authority observed as below: The item double mazza consists of two commodities one is zarda , a Schedule I goods and the other is pan masala , a Schedule IV goods poured in a single pouch marking two parts separately but the customer has no option to buy it either as zarda or pan masala but the whole at a time and as an officer, I have no scope to calculate the tax on pan masala and exempt the zarda . Hence, I consider the item double mazza as a taxable item under Schedule IV. So I disallow the sale of double mazza of Rs. 47,62,500 as a claim of Schedule I goods. . . The applicant being aggrieved and dissatisfied with the assessment order dated June 5, 2006 filed an appeal petition before the appellate authority. The appellate authority by his order dated December 6, 2006 confirmed the assessment order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racting tax at 10 per cent. On the contrary, it was claimed by the learned advocate that the disputed item should come within the purview of entry 82 of Schedule I to the 1994 Act. He drew our attention to the said entry, which reads as below: 82. Tobacco as referred to in the First Schedule to the Central Excise and Salt Act, 1944 (1 of 1944) including cigarette, cigar, cheroot, smoking mixture for pipe and cigarette, bidi, chewing tobacco, snuff and tobacco for hookah, that is to say, tobacco paste, ready for using hookah, when all such items are manufactured or made in India. It was contended by the learned advocate that the disputed item should be treated as an item falling within the meaning of chewing tobacco . He also drew our attention to the certificate dated March 10, 2006 issued by the Superintendent, Central Excise, Guwahati Range, certifying that pan masala manufactured by the applicant contained tobacco. It was further stated in the said certificate that the item stood covered by Central Excise Tariff, sub-heading No. 24039990 and was subjected to Additional Duties of Excise (Goods of Special Importance) Act, 1957. He also relied on the certificate dated A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed item as an unspecified item. It was further submitted that the cases relied upon by the applicant have no applicability in the present case. In the case of Kothari Products Ltd. v. Government of Andhra Pradesh [2000] 119 STC 553, the honourable Supreme Court held gudka (gudaku) was specifically covered by Central Excise Tariff Entry 2404.11 and 2404.12. It was pointed out by the learned State Representative that gudka (gudaku) constitutes mainly tobacco with little molasses and pan masala is a distinctly different commercial product. As regards Sukhram Jagannath [1982] 50 STC 76, it was submitted that the honourable Gujarat High Court proceeded on the basis that the ingredients, namely, tobacco, chuna, supari retained their individual identity and no different commercial commodity came into existence which is not the case here. In the case of Gulabchand Harekchand [1985] 59 STC 224 (Cal), the item was gudaku and the question before the honourable High Court was whether gudka would fall within the meaning of toothpaste or denitrifice or be treated as tobacco. The learned State Representative submitted that since gudaku contained mainly tobacco, the honourable High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n tobacco within itself. The honourable judges of the honourable apex court, Gujarat High Court and Calcutta High Court came to their respective decisions on the basis of facts which are different from the fact of this case. Those decisions have no applicability in this case. Test certificate as relied upon by the applicant does not show whether contents from both the parts of pouch were tested. Certificate dated March 10, 2006 of the Superintendent of Excise, Guwahati shows that the disputed goods are covered under Central Excise Tariff Act, sub-heading No. 24039990. The said sub-heading covers items of three different description, namely, pan masala containing tobacco, gudka ; all goods, bearing a brand name; and all goods, not bearing a brand name (other than pan masala containing tobacco). But from the submission made by the applicant, it appears that tobacco (zarda) and pan masala retained their distinct identity in respective parts of a single pouch and pan masala itself does not contain tobacco . The argument that additional excise duty was leviable on it also does not help the petitioner in view of the decision of the honourable Calcutta High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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