1996(06)LCX0018

IN THE CEGAT, COURT NO. IV, NEW DELHI

S/Shri G.R. Sharma, Member (T) and A.C.C. Unni, Member (J)

COLLECTOR OF C. EX., ALLAHABAD

Versus

SHIV RATAN SAHU DEVI PRASAD

Order No. 422/96-D, dated 25-6-1996 in Appeal No. E/486/88-D with E/CO/188/88-D

Advocated By : Shri A.K. Madan, SDR, for the Appellant.

 None, for the Respondent.

[Order per : G.R. Sharma, Member (T)]. - By the present appeal the De partment has assailed the order of the Collector of Central Excise holding that `Sunghani Sahu’ is classifiable under Chapter heading 3306.00 as a dentifrice.

2. The facts of the case are that the respondent herein are engaged in the manufacture of the item described as `Sunghani Sahu’. On subjecting the product to chemical test it was found to contain tobacco powder and inorganic clay matter with iron oxide. The Chief Chemist opined that clay matter and iron oxide are not used in the manufacture of snuff and that the trade nomenclature and its use as Dant Manjan dentifrice may be taken into consideration while finalising the assessment. The Collector Central Excise while adjudicating the case agreed with this advice of the Chief Chemist as also on the fact that this product was used as a `Dant Manjan’. He held that the product was rightly classifiable under Chapter heading 3306.00 of the Central Excise Tariff Act, 1985. The department has now filed the present appeal on the ground that the Central Board of Excise while considering a similar product held that it was classifiable under T.I. 2404.90 of the Schedule to the Central Excise Tariff Act, 1985.

3. Shri A.K. Madan, the learned SDR appearing for the appellant submits that the product is tobacco based and that similar product described as `Gul’ was examined for classification by tariff conference and it was held that the similar product known as `gul’ was classifiable under T.I. 2404.90 of the CETA. None appeared for the respondents.

4. Heard the submissions of the learned SDR. Perused the case records. We find that the department has filed the present appeal solely on the advice of the tariff conference, we do not see any evidence on record to show that `gul’ considered by the tariff conference is the same or identical product to Sunghani Sahu; the product before us for classification. We find that no doubt that the product is tobacco based but it is a well settled principle of law that for classifying a product the trade parlance should be one of the tests for identifying the product. We find that there is a categorical finding of the Collector, Central Excise stating that the product is known in common/trade parlance as `Dant Manjan’ `Dentifrice’. The department has not brought any evidence to disprove or to rebut this finding of the Collector Central Excise. On the contary, we find that while dealing with `Gul’ there is a finding of the Conference that `gul’ was not known as Dant Manjan in common parlance. Having regard to the fact that there is no evidence brought on record to prove that `gul’ and `Sunghani Sahu’ are identical products as also that no evidence has been produced by the department to rebut the finding of the Collector, Central Excise that `Sunghani Sahu’ is known as a Dant Manjan and used as dentifrice, we do not see any reason to interfere with the impugned order. In the result, the impugned order is upheld and the appeal is rejected.

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Equivalent 1996 (88) ELT 126 (Tribunal)