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TMI Blog2017 (9) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... introduction of compounded levy scheme to branded Chewing Tobacco. 2. The brief facts of the case are that the Central Excise officers conducted certain search and verification in the premises of the appellant in August 2010. On completion of the enquiry, proceedings were initiated against the appellant for classification of the products manufactured by them and to determine the duty liability on the goods manufactured and cleared by them for the past periods. First proceedings were with reference to classification of the product and consequently applicability of small scale exemption and compounded levy scheme during the relevant period. The Original Authority vide his order dated 17/03/2011 held the product manufactured and cleared by the appellant is branded Chewing Tobacco and merits classification under Central Excise Tariff Heading 24039910. He further held that the benefit of Notification 8/2003-CE is not available to the appellant. Further, it has been held that the products manufactured by the appellant are notified goods in terms of Notification 10/2010-CE (NT) dated 27/02/2010, effective from 08/03/2010. Accordingly, duty liability has to be arrived at in terms of Chew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants are not covered by compounded levy scheme under Section 3A effective from 08/03/2010 ; (iii) the machines which were intended to be used in the manufacture of goods in terms of declaration dated 18/12/2007 were sealed by the Department and were never put to use. The appellants procured new machines and informed the Department also. Hence, it is prayed that the declaration given on 18/12/2007, lost its relevance. The product manufactured by the appellant was "lime mix tobacco" and not Chewing Tobacco. Reliance was placed on various case laws in this regard ; (iv) for the period prior to 08/03/2010, the product manufactured by the appellant could not be considered as branded goods. The packings simply indicated the name and address of the manufacturer. This is as per the legal requirement and also as mandated by the Circular dated 18/04/1990 of the Board ; (v) duty is payable on Chewing Tobacco as per the tariff rate of the 1st Schedule to the Central Excise Tariff Act, 1985. Duty under Notification 16/2010-CE dated 27/02/2010 prescribed by the Ministry by delegated legislation cannot prevail over the schedule of the tariff. 6. The learned AR reiterated the findings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and there is no legal infirmity in such proceedings. We have perused the decision of Tribunal in Osaka Alloys & Steels Pvt. Ltd. Vs. CCE, Jalandhar reported in 2005 (192) E.L.T. 1197 (Tri. - Del.), relied upon by the appellant. We note in the said case, there were two show cause notices on the same issue involving duty demand for the same period. In the present case, as already noted, the Assistant Commissioner decided the classification and the Commissioner, in a separate proceedings, decided the application of compounded levy scheme in terms of 2010 rules issued under Section 3A of the Act. Similarly, the facts dealt with by the Hon'ble Bombay High Court in Metal Extruders India Pvt. Ltd. Vs. Union of India reported in 1994 (69) E.L.T. 477 (Bom.) are not similar to the one dealt with in the present appeals. The Hon'ble High Court was dealing with a second proceedings involving the same issue when the earlier show cause notice was dropped by the very same Adjudicating Authority. 9. The main point of dispute in the present appeals is the correct classification of the product manufactured and cleared by the appellant. The application of various notifications and compounded levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Tariff Act as Chewing Tobacco, the Noticee have made contradictory submissions on this score. On the one hand, the Noticee has stated that they were manufacturing Chewing Tobacco without a brand name and therefore availing SSI exemption under Notification No.8/2003 dated 01/03/2003 as amended. It has also been pleaded by them that the goods in question should be classified under Chapter 24013000 of the Central Excise Tariff Act applicable to Tobacco refuse. 4.5.1 I find that, the aspect relating to classification of the impugned goods, as also pointed by the Noticee, was disposed-off by the jurisdictional Assistant Commissioner vide his order-in-original No.77/ADJ/AC/RD/CEX/2011 dated 17/03/2011 ordering levy and recovery of duty on the goods in question under Section 3A of the Central Excise Act, 1944 from 08/03/2010 and on Noticee's appeal the same stands upheld by the appellate authority through OIA No. 176/RPR-I/2011 dated 08/11/2011. 4.5.2 I find from the records of the proceedings that admittedly, the so called Lime mixed tobacco (Khaini) is the result of mixing of Tobacco and Lime in certain proportions in the mixing machines installed at the premises of the Noticee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at notwithstanding anything contained in Section 3, the Central Government can notify in respect of specific goods that the duty shall be levied and collected in accordance with the provision of Section 3A. The Original Authority has correctly examined the applicability of compounded levy scheme w.e.f. 08/03/2010, to the products manufactured and cleared by the appellant and confirmed the duty liability accordingly. 12. One of the points raised by the appellant is regarding the manufacture of product by them without any brand name. It is claimed by the appellant that the name appearing in the pouches is only to show the manufacturer and there is no branding of the product. It is further claimed that such mention of the name is in terms of Board Circular and statutory requirements. We have perused samples of pouches during the course of arguments, in the present appeals. It is clear that the pouches had not only carried the manufacturer's name and details, but also the photograph of a person alongwith certain identifying marks like "Lalit Chhap" "HIRA 2002 Tobacco" "HIRA mix". Some of the pouches, in fact, carried certain unique design of abbreviation of English letters apart from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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