Page 244 - ELT_1st August 2020_Vol 373_Part 3

426 EXCISE LAW TIMES [ Vol. 373

under the name and style of M/s. Dharampal Styapal Ltd. and no sample stand
drawn from their stock. As such, reliance on the test report is vitiated piece of
evidence and should be kept out of consideration.
6. On the other hand Learned D.R. appearing for the Revenue reiterat-
ed the reasoning of the authorities below and submitted that each and every is-
sue raised by the appellants stand effectively dealt with by the Lower Authorities
and submits that inasmuch as the issue stand finally decided by the Hon’ble
Orissa High Court in respect of the same product of the assessee, the same can-
not be re-opened and decided afresh. He submits that the Orissa High Court de-
cision has finally concluded the issue in favour of the Revenue and there being
no contra decision of any other High Court, the ratio declared by the Orissa High
Court would apply. He accordingly prays for rejecting the appeals.
7. Having considered the submission made by both the sides, we find
that the appellants were manufacturing the goods under the brand name of “Ba-
ba” and filed various declarations in terms of the provisions of ‘Chewing Tobac-
co and unmanufactured Tobacco Packing Machine (Capacity Determination and
Collection of Duty) Rules, 2010’ by describing the product as Chewing Tobacco.
Such declarations were scrutinized by the Deputy Commissioner who fixed the
capacity of the machines having the speed for the manufacture of Jarda Scented
Tobacco.
It is seen that Shri Shashi Kumar Maheshwari, General Manager (Com-
mercial & Legal) of the unit submitted before the Deputy Commissioner in his
statement dated 16-2-2016 that they were adding Saffron and scented flavor
alongwith other ingredients in their product being manufactured and sold under
the brand name of ‘Baba’. It was also contended by him that the product being
manufactured by them is known in the market as Chewing Tobacco and the
same is not being marketed or traded as Jarda Scented Tobacco.
It is further seen that another unit of the same group located at Noida
was manufacturing an identical product using the similar ingredients having the
same manufacturing process and the product manufactured by the said company
M/s. Dharmpal Styapal was being declared by them as “Jarda Scented Tobacco”
falling under Chapter Heading 2403 99 30. Further, the product manufactured by
the appellant as also by M/s. Dharampal Styapal were having the same brand
name and were entering the market as one and the same product. The sample of
the product being manufactured by M/s. Dharampal Styapal was drawn and got
tested from the chemical examiner. The forwarding of the sample and the test
report of the same, as mentioned in the impugned orders is being reproduced
below for ready reference :-
“9A - And whereas representative samples drawn from the unit having
Registration No. AAACD1952BEM016 of the product in question were
drawn as Sample No. 01(01/01 to 01/04) for BABA black deluxe Chewing
Tobacco & Sample No. 02(01/01 to 01/04) for loose finished Chewing Zar-
da, as described by the party, by the officers of Central Intelligence Unit,
Central Excise, Meerut Zone, Meerut under Test Memo No. 23/2015 and
sent to Central Revenues Control Laboratory, Pusa, New Delhi for testing
the product as to whether the said samples are Chewing Tobacco or Zarda
Scented Tobacco.
The Central Revenues Control Laboratory, New Delhi after testing the
samples submitted the report for the two samples as under :

EXCISE LAW TIMES  1st August 2020  244