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TMI Blog2022 (2) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... city of production' as per Section 3A of Central Excise Act read with Chewing Tobacco and Unmanufactured Tobacco packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 (hereinafter referred to as Packing Machine Rules, 2010). The appellant as required under Rule 6 of the Packing Machine Rules, 2010 filed declaration on 26.03.2015 intimating the Divisional Assistant Commissioner that w.e.f. 01.04.2015 they will be operating only three machines for pouch packing of 'Jarda Scented tobacco' falling under CETH 24039930. 3. On 01.04.2014, Revenue collected the samples of jarda scented tobacco from the factory of the appellant and the same was sent to CRCL, New Delhi for testing. 4. In the meantime, by provisional capacity determination order No. 13/15 dated 07.04.2015 in respect of the three operating machines, it was determined as follows:- 6. MRP per pouch Re.1.00/- (Scented jarda tobacco) 7. Number of operating packing machines w.e.f. 01.03.2015 03 (Three) Nos. 8. Maximum speed of pouch packing machine relevant for deciding production capacity. Any speed 9. Deemed monthly production per machine per month 69,88,800 pouches 10 Annual de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n "M-Branded Chewing Tobacco Rs. 1/- Madhu". The sample is in the form of brownish coloured cut pieces of leaves. It is mainly composed of Tobacco and flavourents. It does not contain added lime. Sealed remnant sample returned." 10. Thereafter, the Assistant Commissioner passed order-in-original/ memorandum dated 30.09.2015 wherein he inter alia held the classification of the product manufactured by the appellant (from 01.06.2015) to be jarda scented tobacco falling under CETH 24039930 and also determined the Annual production capacity for three pouch machine at 25,15,96,800 MRP Rs. 1/- for the remaining period of financial year 2015-16 in pursuance of Rule 5 of the Packing Machine Rules, 2010, as amended by Notification No. 4/2015. Further directed Range Officer to accordingly assess the respective ER-I return(s) of the appellant as to whether the duty paid is in conformity with this order. 11. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals) who vide order-in-appeal No. 21-CE/APPL/KNP/ADE/NACEN/2017-18 dated 01.02.2018 ordered modification of the impugned order dated 30.09.2015 holding that the same is applicable only for the month of April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein to give a conclusive report regarding the sample drawn on 09.06.2015- that whether the sample can be classifiable under CSH 24039910 as Branded Chewing Tobacco or Jarda Scented Tobacco under CSH 24039930 of CETA, 1985. The Chemical Examiner, CRCL, New Delhi submitted clarification in respect of both the samples dated 01.04.2015 and 09.06.2015 which are as under- (i) Clarification submitted vide C. No. 35-Cus/Misc. Corres/ 2017-18 dated 04.02.2019 in respect of Test report of 'jarda Scented Tobacco' submitted vide C. No. 35-Cus/CRCL/2015/CL-41-CE dated 04.06.2015 in respect of sample dated 01.04.2015 is as under:- (2) In this context it is informed that sample received was in the form of brown colour dried cut pieces of vegetable matter having pleasant odour and flavouring agents. It shows the presence of nicotine. (3) As per the technical literature available "jarda is a chewing tobacco product made of highly scented and flavoured tobacco flakes". (Ref: IS 10335:2016) (4) In view of the composition of the sample found in testing and the technical literature available on the subject matter, I am in the opinion that the sample under reference merits to be considered as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iner is not the authority under the scheme of the Act read with the Rules thereunder to determine the classification. It is the Adjudicating Authority who is required to apply his mind and adjudicate on the classification matter. It is apparent from the impugned order that the Court below have mechanically followed the subsequent opinion of the chemical examiner obtained in February, 2019 behind the back of the assessee, with reference to the test report dated 04.06.2015 and 14.07.2015. Such exercise is wholly misconceived, arbitrary and not known to the process of law. 18. Learned Counsel further urges that the second test report dated 14.07.2015 (sample drawn on 09.07.2015 when the appellant was manufacturing branded chewing tobacco) is unequivocal and unambiguous, as the test report states - it does not contain any odoriferous substance such as jarda scent and therefore cannot be anything else other than branded chewing tobacco. The report dated 14.07.2015 clearly mentions that the sample is mainly composed of tobacco and flavourants. Nowhere mentions presence of odoriferous substance or having any pleasant odour. Whereas in the earlier report for sample drawn on 01.04.2015, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered as 'jarda scented tobacco' and is classifiable under heading 24039910. Earlier the assessee had erroneously classified the product under heading 24039930 - jarda scented tobacco. The Revenue considered the product as jarda scented tobacco. The assessee had paid the differential duty under protest and contested the issue. The appellant -assessee had prayed for testing of their product, which was not done by Revenue. 22. The Co-ordinate Bench in the case of Som Products (supra) also referred to the ruling of co-ordinate Bench of this Tribunal at Ahmedabad in Urmin Products Pvt. ltd. vs. Commissioner of Central Excise, Ahmedabad -2010 (256) ELT 597 (Tri. Ahmd.), wherein this Tribunal has observed that Department has not produced any evidence to show that the product is scented jarda tobacco. In fact, Revenue have relied upon the process of manufacture in the adjudication order. A flow chart on the manufacturing process was also on record according to which no odiferous substance was used. However, Production Manager stated that they are manufacturing 'jarda scented tobacco' also. In the invoices the appellant has described their product as 'rajasthani jarda' prior to 01.04.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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