TMI Blog2017 (9) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... s clear that the product manufactured by the appellant cannot fall under that category which are classified under Central Excise Tariff Heading 24039100. Compounded Levy scheme - the appellants contested that the rate of duty as determined by the 1st Schedule to Central Excise Tariff Act readwith notification for SSI Notification No.8/2003-CE should apply to them. In fact, they contested that Chewing Tobacco cannot be brought under the 2010 rules for compounded levy - Held that: - The compounded levy scheme is framed in terms of the statutory powers provided under Section 3A of the Central Excise Act, 1944. The said section clearly stipulates that 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. Use of brand name in the product - It is claimed by the appellant that the name appearing in the pouches is only to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 issued under Notification 11/2010-CE (NT). 3. In the second proceedings, the appellant s liability in terms of Notification 10/2010-CE (NT) under the Rules 2010 were decided by the Commissioner in his impugned order dated 27/12/2011. The Commissioner held that the appellants are liable to duty in terms of the said ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 st 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 the lower authorities. He submitted that the appellants themselves filed declaration classifying their product as Chewing Tobacco. Even in the statement given by the proprietor it has been categorically admitted that the product is Chewing Tobacco. The classification of the product has been examined with the scope of the tariff and the nature of product as claimed by the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 scheme will be determined in terms of the classification of the product. The Revenue held the product to be classified as Chewing Tobacco under Central Excise Tariff Heading 24039910. The appellants did not make any specific claim of classification, but submitted their product as lime mix tobacco may be classifiable under Heading 240339100 or 24039920 or 240 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. This being so, the question of the resultant product being treated as Tobacco refuse described in the HSN as waste resulting from the manipulation of tobacco leaves, or from the manufacture of tobacco products (stalks, stems, midribs, trimmings, dust, etc.) is ruled out. 4.5.3 Further I find that the Notification No.16/2010CE dated 27/02/2010 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufactured 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 a warning to be beware of spurious products. On perusal of these sample packages, we are satisfied that there is an identifiable distinct branding of these products which have the effect of linking the product to a particular person, among the consuming public. As such, we find no merit in the claim of the appellant that these are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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