Brief of the caseIn the case of Commissioner Of Central Excise, Vapi Vs. M/s. Global Health Care Products , the Supreme Court held that ‘Close up’ should be classified as dental cleaner, not toothpaste on account of different and varing ingredients and ratio of all the inputs which go into the manufacturing of a toothpaste and dental cleaner.
Brief facts of the Case
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. 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. From July 01, 2001, a new product known as ‘Close-Up Whitening’ was introduced by the assessee. The assessee classified this product under Chapter sub-heading 3306.90. The Revenue treated the aforesaid classification as erroneous as according to it Close-Up Whitening also falls under Chapter sub-heading 3306.10 and not 3306.90. It also suspected that this product was deliberately misclassified in the said heading to evade payment of proper Central excise duties by resorting to assessment of the product under Section 4 of the Central Excise Act, 1944 (hereinafter referred to as the ‘Act’) instead of assessment under Section 4A thereof.
Investigation into the matter was initiated resulting into searching of the premises of the assessee. 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 containing pages 1 to 235 issued by the Dental Information Centre of HLL.
On the scrutiny of these documents, the Revenue noticed 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 comparison with the other three products. It was also found that as far as Close-Up Whitening is concerned, there was presence of ‘uniformity dispersed blue speckles’.
On the basis of the aforesaid material, the Revenue took the position that the aforesaid differences did not change the essential character of the product in question which still remained ‘toothpaste’ and, therefore, it was classifiable under Chapter sub-heading 3306.10.
Show-cause notice was issued alleging short payment of duty. The assessee filed its reply thereto contending that it was not a toothpaste and, therefore, rightly classified by it under sub-heading 3306.90. The aforementioned contention of the assessee was brushed aside by the Commissioner in his Order-in-Original thereby confirming the excise duty demand as mentioned in the show-cause notice.
Aggrieved by the aforesaid order, the respondents herein filed appeals before the Custom Excise & Service Tax Appellate Tribunal, Mumbai. These appeals have been allowed by the Tribunal.
In the present appeal, validity and correctness of the aforesaid order of the Tribunal is questioned by the Revenue.
Held by Hon’ble Supreme Court of India
The Hon’ble Supreme Court noted the exact language of the relevant entries in the tariff.
Chapter Heading 3306 of the Tariff Act, with the aforesaid sub-headings, is reproduced below:
