2011(07)LCX0233

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI

S/Shri M.V. Ravindran, Member (J) and Sahab Singh, Member (T)

Global Impex

Versus

Commissioner of Customs (Export), Nhava Sheva

Final Order No. A/283/2011-WZB/C-1KCSTB), dated 6-7-2011 in Appeal No. C/598/2009-Mum

Cases Quoted -

Commissioner v. Shree Baidyanath Ayurved Bhawan Ltd. - 2009(04)LCX0002 Eq 2009 (237) ELT 0225 (S.C.) Relied on IParas 4, 6]

Writ petition (Crl.) No. 49/2011 dated 2-3-2011 (S.C) [Paras 2,6]

Advocated By -

Shri Prakash Shah, Advocate, for the Appellant.
Shri A.K. Prabhakar, JDR,for the Respondent.

[Order per : M.V. Ravindran, Member (J)]. -

This matter was called out on circulation done by the Ld. Counsel, for hearing and disposing the matter.


2. The Ld. Counsel Shri Prakash Shah, submits that this Bench vide Mis-cellaneous order No. M/340/10/CSTB/C-II, dated 13-8-2010, had granted out-of-turn hearing in this matter. It is his submission that the matter could not be heard on those dates, though being listed due to paucity of time. It is his submission that this appeal is filed by the appellant-against Order-in-Appeal No. 277(Ex.-GDL)/2009 (JNCH), dated 10-6-2009. It is his submission that the very same Order-in-Appeal was challenged by the appellant in Writ Petition No. 49 of 2011, under Article 32 of Constitution of India, before the Hon'ble Supreme Court and fairly submits that Apex Court was pleased to dismiss the said Writ Petition No. 49/2011, vide order dated 2nd March, 2011.


3. Learned Departmental Representative submits that if the issue is covered by the decision of the Apex Court, the matter may be disposed off.


4. On perusal of the Order-in-Appeal, we find that the goods sought to be exported were supplied to the appellant by M/s. Borsad Tobacco Co. Pvt. Ltd., Gujarat, and was described as "Shaheen Misri-Tooth Powder, a Tobacco Product". Appellant claimed the product as a Tobacco product and classified the same under Customs Tariff Heading No. 2403. The assessing authority rejected the declared classification under Chapter Heading No. 22403 as "Tobacco Product", and classified the goods under Chapter Heading No. 3306 as "Tooth Powder". Aggrieved by such rejection of classification and consequent classification of their products under Heading 3306, appeal was filed before Commissioner (Appeals), which was dismissed by first appellate authority relying upon various decisions and more specifically on decision of Apex Court in the case of Commissioner of Central Excise, Nagpur v. Shree Baidyanath Ayurved Bhazvan Etd., 2009 (12) SCC 419 = 2009(04)LCX0002 Eq 2009 (237) ELT 0225 (S.C), on the ground that product is marketed and used as "Tooth Powder" as is known in such trade/common parlance.


5. We are in complete agreement with the view of lower authorities.


6. On perusal of the order dated 2nd March, 2011, of the Apex Court in Writ Petition (Crl.) No. 49 of 2011, filed by the appellant against the same impugned Order-in-Appeal, it is seen that while dismissing the said writ petitions, Apex Court relied upon their own decision in the case of Shree Baidyanath Ayurved Bhawan Ltd. case, which was relied upon by the first appellate authority in the impugned order. Thus classification as done by the department and upheld by the Commissioner (Appeals) was upheld.


7. We are bound by the view taken by the Apex Court in the Writ Petition filed by the appellant against the very same Order-in-Appeal. Nothing survives in this appeal. In view of the foregoing, the appeal filed by the appellant is dismissed.
(Dictated in the Court)

Equivalent 2012 (279) ELT 0413 (Tri. - Mumbai)