TMI Blog2001 (10) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... acking into retail pack, the impugned goods is classifiable under Sub-heading 3305.99 as "preparations for use on the hair" in terms of Note 4 to Chapter 33 of the Tariff. The learned Consultant, further, submitted that there is no manufacture in repacking cononut oil, a fixed vegetable oil falling under Chapter 15 of CETA; that there is no Chapter Note in Chapter 15 construing repacking as amounting to manufacture; that there is no dispute that coconut oil received by them does not undergo any change in the hands of the Appellants except that it is repacked in small containers; that the name, character or the use of the coconut oil remains the same; that the use of such coconut oil for application on hair is also the natural and inherent quality of the coconut oil itself and any such quality is not imparted by the Appellants at all; that the Note to Chapter cannot be applied to construe re-packing as manufacture; that the words "in relation to products of Heading No. 33.03, 33.04 and 33.05" are significant and the process specified in the Note should have been undertaken on a product falling under the said Headings; that if these process are undertaken on a product falling under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 2 to Chapter 33, the packing must have label, literature or other indications that these are for use as cosmetics or toilet preparations; that neither in the show cause notice nor in the impugned Order there is any finding that packing, in which the coconut oil is packed, has any label, iliterature or other indications. Reliance was placed on the decision in the case of B.P.L. Pharmaceuticals Ltd. v. CCE [1995 (77) E.L.T. 485 (S.C.)] wherein it was held that - "In order to attract Note 2 to Chapter 33 the product must first be a cosmetic, that the product should be suitable for use as goods of Headings 33.03 to 33.08 and they must be put in packing as labels, litrature and other indications showing that they are for the use as cosmetics or toilet preparations." The learned Consultant showed a few photographs of the impugned product to show that there was no such label affixed thereon. Finally he submitted that the demand is time barred as the fact about the marketing of coconut oil packed in small containers is clearly known to the Department which has issued Circulars; that non charging of duty was not on account of any suppression of facts on their part but on account of clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 33.05" appearing in Note 4 do not impose any condition that the goods in bulk etc., should fall under the same Heading; that these words merely make a reference to the products emerging as a consequence of undertaking of the process specified in Chapter 33. He further mentioned that this view becomes manifest from a few other excisable products in relation to which similar Chapter Notes apply; that for example insecticides, fungicides, pesticides, fall under Heading 3808.10 and the Chemicals used for manufacture thereof are classified under Chapter 29. In this regard he referred to para 11 of the impugned Order wherein the Adjudicating Authority had mentioned a number of examples. Finally he submitted that the extended period of limitation is invokable as they had suppressed the fact of manufacture of hair oil from the Department; that the right course of action for them was to disclose their activities and to obtain approval of the Department for not obtaining a registration under Central Excise law. 6. In reply, the learned consultant submitted that before levying Excise duty, the Department first has to prove that there was any manufacture; that there is no evidence brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under Heading 15.03. Further there is no labels, literature or indications on the packings that the product is for use as cosmetics or toilet preparations. Merely the fact that the product is being advertised as hair oil is not enough to classify it under Heading 33.05 or to attract provisions of Note 2 to Chapter 33. It is the consistant view of the Tribunal that classification of the product cannot be determined on the basis of certain characteristics of a product high lighted in the advertisement by the manufacturer. The classification is determined on the basis of the nature of the product and its description in the relevant Heading of the Tariff. In Ram Tirth Yogasharam, supra, relied upon by the learned Consultant, it has been held by the Bombay High Court that the mode in which a person may choose to advertise his commodity cannot be decisive in determining its real nature. Similar views were expressed by Madras High Court in TSR Company Case, supra. The Bombay High Court again in Leucoplast (I) Pvt. Ltd. v. U.O.I. [1985 (20) E.L.T. 70 (Bom.)], observed as under : "However, it may be pointed out that for the purposes of classification for levy, the advertisements are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined. Though it is true that the headings, in HSN are not aligned with CETA, 1985 the HSN notes are a guiding factor they clearly bring out that coconut oil is a fixed vegetable oil which merits classification under Chapter 15.1. Therefore, keeping in view of Chapter Notes, HSN Notes, the Tariff Conference of 1991, the report of D.G. (A.E.) and the opinion of Chief Chemist, CRCL it is felt that coconut oil whether pure or refined and whether packed in small or large containers merits classification under Heading No. 1503 as long as it satisfies the criteria of 'fixed vegetable oil' laid down in Chapter Note 3 of Chapter 15. It is also clarified that if the containers bear labels, literature, etc., indicating that it is meant for application on hair as specified under Note 2 of Chapter 33 and/or if the coconut oil has additives (other than BHA) or has undergone process which made it a preparation for use on hair as mentioned in Chapter Note 6 of Chapter 33 then the coconut oil may merit classification under Chapter 33." 9. As in the present matter, it has not been disputed by the Revenue that the impugned product satisfies the criteria of fixed vegetable oil laid down in Note 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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