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M/s Ajay Bio-Tech India Ltd. Versus Commissioner of Central Excise, Pune-III

2016 (4) TMI 322 - CESTAT MUMBAI

Classification - Bio-95 - Whether to be classified under CETH 3402.90 as per revenue or under 3402.10 as claimed by appellant - Held that:- the product is 'Organic Surface Active Agent' as per the main tariff entry under Chapter Heading 3402. 'Organic Surface Active Agent' has been divided into two sub-headings, one is under 3402.10 as "Sulphonated Castor Oil, Fish Oil or Sperm Oil" and second is under 3402.90 as "other". It is found that the appellant with effect from 01-12-2004 changed the for .....

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d law that specific entry prevails over the general entry. Therefore, by applying the decision of Tribunal in the case of Unitex Dychem India Vs. Collector of C.Ex., New Delhi [1998 (5) TMI 99 - CEGAT, NEW DELHI], where the Tribunal decided the classification under 3402.10 of product containing 53% water and 47% Sulphonated Castor Oil. The present case of the appellant is on a better footing for the reason that in the captioned product Sulphonated Castor Oil used is to the extent of 95%, hence, .....

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not used as toilet soap, so with this fact the product is a medicated soap which finds an entry under CETH 3401.11. On the identical product, this Tribunal in the case of Commr. C.Ex., Chennai vs Calcutta Chemical Co. Ltd. [2008 (8) TMI 620 - CESTAT, CHENNAI] decided the classification of the product. Therefore, the products namely Herbal Pet Wash are correctly classified under 3401.11. - Decided in favour of appellant - Appeal No. E/536/08, Application No. E/MA(ORS)/98293/14-Mum - Ordere No. A/ .....

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of equal amount under Section 11AC and also demanded interest under Section 11AB. The Misc. Application was filed by the applicant for considering additional ground of Appeal on the merit of classification of the issue, which was not raised in the Original Appeal memo. 2. The issue involved in the present case is the classification of two products namely Bio-95 and Herbal Pet Wash. The revenue classified Bio-95 under CETH 3402.90 and Pet Wash under CETH 3307.90 as against the appellant's cl .....

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that as regard the misc. application, the appellant in the original appeal only raised the ground of limitation, however by the way of this misc. application, additional grounds of appeal on classification of the product in question have been raised which may kindly be considered for the reason that the very same issue in the whole case is classification of the products and the demand confirmed is consequent to the decision of classification of the products Bio-95 and Herbal Pet Wash, she submi .....

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Sulphonated Castor Oil under Chapter Heading 3402, a sub-heading 3402.10 is provided for entry "Sulphonated Castor Oil, Fish Oil or Sperm Oil" and for sub-heading 3402.90 the entry as "other". She submits that there is a specific tariff entry for Sulphonated Castor Oil under CETH 3402.10, therefore there is no reason for classifying the same under residual entry i.e. "other" falling under CETH 3402.90. In support, she placed reliance on the judgment of Unitex Dyche .....

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mula of Neem, Soap=nut & Shikekai of pet wash. Gives shiny coat to animals and protects them from insect pests". She further submits that the 'perfumery cosmetic or toilet preparations' in Heading 3307 which applied to animal toilet preparation but in the present case the product is not 'perfumery cosmetic or toilet preparations' whereas the same is medicated soap and the same was licensed as 'Ayurvedic Proprietary Medicine', therefore it does not fall under Chap .....

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beyond the normal period of one year. She submits that the appellants have been filing monthly ER-1 return, wherein they have declared the product Bio-95 under CETH 3402.10 and Herbal Pet Wash under CETH 3401.11. Therefore, the description and chapter under which the goods were classified was known to the department. They have been raising invoices under classification as claimed by them. Hence there is no suppression of fact on the part of the appellant. The demand is barred by limitation. Ld. .....

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. vs C.C.E. Delhi [2005-(XC4)-GJX-1733-SC] 4. On the other hand, Shri V.K. Shashtri, Ld. Asstt. Commissioner (AR) appearing on behalf of the revenue reiterates the findings of the impugned order. 5. We have carefully considered the submissions made by both the sides. 6. Before deciding the matter, we take up the misc. application; we find that the additional ground submitted under this application is on the issue of merit of classification, since entire root cause of the proceeding is classifica .....

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il" and second is under 3402.90 as "other". It is found that the appellant with effect from 01-12-2004 changed the formula and according to which they started using Sulphonated Castor Oil instead of Ground-Nut Oil. As per the composition, Sulphonated Castor Oil exists in the product to the extent of 95%. On this fact, the product is pre-dominantly preparation of Sulphonated Castor Oil. Therefore, in our view the product Bio-95 is clearly classifiable under the CETH 3402.10. We als .....

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