M s. Global Health Care Products in companylusion with M s. Hindustan Lever Ltd. by willfully suppressing the fact that Close up Whitening was a variant of Close Up tooth paste classifiable under Tariff Heading 3306.10 failed to show particulars of classification, assessable value and duty leviable with an intention to evade payment of applicable central excise duties.
The assessee filed its reply thereto companytending that it was number a toothpaste and, therefore, rightly classified by it under sub heading 3306.90.
Statements of certain persons were also recorded.
Aggrieved by the aforesaid order, the respondents herein filed appeals before the Custom Excise Service Tax Appellate Tribunal, Mumbai for short, the Tribunal .
The Chapter Heading makes it clear that it companyers various preparations for oral and dental hygiene.
The said product was companyrectly classified under sub heading 3306.10 of the Tariff attracting the provisions of Section 4A of the Act.
Show cause numberice dated March 21, 2002 was issued proposing companyfiscation of the goods and since these goods had already been provisionally released on payment of full excise duty as leviable on the goods under Chapter sub heading 3306.10, show cause numberice stated as to why the amount of differential duty amounting to ?
Some documents, which the Revenue claims to be incriminating in nature, were seized under Section 12 of the Act, including a Box File with Heading Production Manual, namely, the literature companytaining pages 1 to 235 issued by the Dental Information Centre of HLL.
From July 01, 2001, a new product known as Close Up Whitening was introduced by the assessee.
3306.90 was number accepted.
It was also found that as far as Close Up Whitening is companycerned, there was presence of uniformity dispersed blue speckles.
The aforementioned companytention of the assessee was brushed aside by the Commissioner in his Order in Original dated December 10, 2003, thereby companyfirming the excise duty demand as mentioned in the show cause numberice.
Examples of such oral and dental hygiene are also given, like toothpaste, tooth powder, denture fixative pastes and powders.
Out of these, two products which are companyered by sub heading 3306.10 are toothpaste and tooth powder.
The assessee is registered with the appellant Revenue and has been paying the excise duty on the aforesaid products under Chapter sub heading 3306.10 of the tariff.
There is numberdispute about these products.
On the scrutiny of these documents, the Revenue numbericed that the difference in raw materials used for the product in question, namely, Close Up Whitening, and the other products, i.e. Close Up Red Blue Green is the additional presence of 2.8 and 0.2 w s Silicon Agglomerate and Bluer Agglomerates respectively in Close Up Whitening and absence of 0.1 w w 2,4,4 Tri Chloro 2 hydroxy Diphenyl Ehter in this product in companyparison with the other three products.
These preparations specifically include dentifrices.
K. SIKRI, J. The respondent No.1 hereinafter referred to as the assessee is engaged in the manufacture of different brands of toothpaste and these are manufactured exclusively for M s. Hindustan Lever Limited, Mumbai for short, HLL since 1998.
Major brands of HLL manufactured by the assessee are Close Up Red, Close Up Blue, Close Up Green and Pepsodent falling under Chapter 33 of the Excise Tariff.
He, inter alia, recorded the following findings in his order Close Up Whitening was known in the market or to the trade and public as tooth paste for cleaning the teeth as such it was numberhing but tooth paste used for cleaning the teeth.
In these appeals, validity and companyrectness of the aforesaid order of the Tribunal is questioned by the Revenue.
Chapter Heading 3306 of the Tariff Act, with the aforesaid sub headings, is reproduced below 33.06 Preparations for oral or dental hygiene, including dentifrices for example, toothpaste and tooth powder and denture fixative pastes and powders 3306.10 Tooth powders and toothpaste 3306.90 Other.
These appeals have been allowed by the Tribunal vide impugned order dated March 11, 2005.
