Page 245 - ELT_1st August 2020_Vol 373_Part 3

2020 ] DHARAMPAL PREMCHAND LTD. v. COMMISSIONER OF CENTRAL EXCISE, NOIDA 427

(i) On opening the sample packet, a unit packing (printed plastic
pouch) printed as “BABA Black” containing sample was
found. The sample was in the form of yellowish brown col-
oured small cut pieces of vegetables matter (cut bits of leaves)
along with silver flecks having pleasant odour. It was com-
posed of tobacco, silver flecks & fragrance.
(ii) On opening the sample packet the sample was found in loose
packing. The sample was in the form of yellowish brown col-
oured small cut pieces of vegetables matter (cut bits of leaves)
along with silver flecks having pleasant odour. It was com-
posed of tobacco, silver flecks & fragrance. It had the charac-
teristics of scented Tobacco. It did not contain slaked lime.
Further, clarifications were sought from CRCL vide letter dated 17-3-2016
upon which the CRCL vide letter dated 5-5-2016 clarified as under :
“In this regard, it is to inform that on the basis of authentic technical
literature (IS) & analytical findings, it is opined that sample regis-
tered under CL-568 C. Ex, CL-575 C. Ex & CL-571 C. Ex. to CL-573
C. Ex/18-1-2016 are Chewing Tobacco (Zarda), whereas CL-574 C.
Ex./18-1-2016 is a Preparation containing chewing tobacco.”
And whereas the party is manufacturing the same product but with a dif-
ferent RSP/weight, in its another unit at 6A, A-34/35, Sector 60, Noida hav-
ing RC No. AAADCD1952BEM016.
In view of the Test Report of the product in question, received from CRCL
quoted above, it further appeared that the goods described by the party as
chewing tobacco, were in fact Zarda Scented Tobacco falling under CETSH
2403 99 30 and liable to Central Excise duty as such but the party misclassi-
fied it to be Chewing Tobacco falling under CETSH 2403 99 10 with the sole
intention to evade payment of Central Excise duty in contravention of pro-
visions of the CTPM Rules, 2010.”
The appellants during the course of adjudication requested for providing the
said test report as also the cross-examination of the chemical examiner, which
request of the appellants was acceeded to. The Lower Authorities have relied
upon the said test report of the chemical examiner with which the appellant is
aggrieved on the ground that the samples were not drawn from their manufac-
turing process but the same belongs to the other units of M/s. Dharamapal Sty-
apal located at Noida. They have further contended that the chemical examiner
has no jurisdiction to decide upon the classification and as such has travelled
beyond his powers.
8. We note that the appellants, apart from contending that the samples
were drawn from other unit located at Noida and not from their unit, have oth-
erwise not contested the fact that both the products are being marketed under
the same brand name ‘Baba’ and the manufacturing process in both the units is
identical. Once the goods go to the market under the same brand name, consum-
er is not bothered about the manufacturer of the same. The goods are traded as
one, whether manufactured in one factory or other. The brand name ‘Baba’ is
admittedly associated with the appellant and we have not been shown that the
two products i.e. one manufactured in the appellant’s factory and another in
Noida factory are different products. As such, we are of the view that the opinion
of the chemical examiner holding that the product was composed of tobacco, sil-
ver flecks, fragrance and has the characteristics of scented tobacco would equally
EXCISE LAW TIMES  1st August 2020  245