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TMI Blog2024 (6) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... product declared as 'Chewing Tobacco' by the Respondent under CETH : 2403 99 10 and as 'Jarda Scented Tobacco' CETH : 2403 99 30 as alleged by the Appellant Revenue. Brief facts of the case are that the Respondent's product is "CHEWING TOBACCO" CETH : 2403.99 10, which is manufactured under the brand name "GOPAL" and is sold as such. In 2009, Shree Flavour Private Limited was incorporated and entered with Trade Mark and Copyright Agreement with M/s Hari Chand Shri Gopal for the manufacture of said Chewing Tobacco under the brand "GOPAL". The company, Shree Flavours Private Limited, was later converted to LLP Firm, M/s Shree Flavour LLP. 3. In the year 2015, the Respondent has established two manufacturing units under the jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved, Department is in appeal before the Tribunal. 5. We find that the learned Commissioner in the impugned orders have classified the respondent's product as 'Chewing Tobacco' on the basis of :- (i) That the Respondent has been declaring their product under reference as "Chewing Tobacco" on its packing has not been disputed by the Department; (ii) That the said product, i.e., "GOPAL Chewing Tobacco", has been in production and sale for long time, almost 6 decades, albeit at different locations and different manufacturers under separate licensing agreements, and so might be said to possess the characteristics of CHEWING TOВАССО. (iii) That the CRCL Test Report cannot be considered as conclusive reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.7.2006 whereby the chewing scented tobacco classiflable under Heading 24039910 also notified as assessable under Section 4A of the Central Excise Act, 1944. Prior to the period in dispute 1.3.2006 to 10.7.2006 the appellants were clearing the product as flavored chewing tobacco and thereafter, also clearing the same by classifying the product under Heading 24039910 of the Tariff and the product in question is marketed as Chewing Tobacco. In these circumstances I find in the contention of the Appellant." (v) Since the facts of that case are identical, its ratio would be squarely applicable to this case also. 6. It is the case of the department that Since the matter of Classification is sub-judice before the Hon'ble Supreme Court, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not on the assessee. In the facts obtained in the present case, no evidence of whatsoever nature has been placed by the Revenue to raise any presumption. In fact, the entire proceedings are based upon "audit objection" and the Revenue attempts to rely upon the additives to the 'chewing tobacco' as the basis for arriving at a conclusion, that assessee had cleared the 'jarda/zarda scented tobacco' which is not even supported by the samples drawn or inquiry made from the traders or consumers or stockist, suppliers and buyers. In the absence of iota of material, the finding of the tribunal cannot be displaced. It would be of benefit to extract the finding recorded by the third member of the tribunal, who upheld the finding of the judicial membe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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