Page 246 - ELT_1st August 2020_Vol 373_Part 3

428 EXCISE LAW TIMES [ Vol. 373

apply to the product being manufactured by the appellant. Further the statement
of the General Manager admitting that they were adding silver and scented fla-
vour to the other ingredients of their product manufactured and sold under the
brand name of ‘Baba’ supports the opinion of the Chief Chemist, which cannot
be dismissed lightly. As such, we hold that reference and reliance to the said test
report of Chemical Examiner cannot be faulted upon.
Further, though the chemical examiner has opined on the correct classifi-
cation, which may not be within his jurisdiction, we note that Commissioner has
primarily gone by the test report of the chemical examiner and has not adopted
his opinion on classification straightaway without discussing the ingredients etc.
and the two entries in the Excise Tariff. He has independently examined the issue
and such contention even if accepted, does not tilt the case in favour of the as-
sessee.
9. Further, Learned Advocate has strongly contested that for the past
few years their declaration as ‘Chewing Tobacco’ is being accepted by the Reve-
nue and as such the same cannot be changed all of a sudden. The said plea of the
assessee stand dealt with by Commissioner in one of his order wherein, by refer-
ring to various decisions of the higher Courts he has observed that there is no
estoppel in taxation matters and the past erroneous classification followed is no
bar to Department in reclassifying the goods under correct entry by considering
the merits of the case. Reference, in this regard can be made to Hon’ble Gujarat
High Court decision in the case of Mcgaw Ravindra Laab (I) Ltd. v. UOI 1992 (60)
E.L.T. 71 (Guj.).
As such, we find no merits in the above contention that merely because
their final product was being accepted as Chewing Tobacco falling under Head-
ing 2403 99 10, the correct classification cannot be considered for future clearanc-
es. It may be noted that no demand of duty relates to the period when the classi-
fication of the appellants’ final product stand accepted as Chewing Tobacco. It
relates to only that period where the classification stand changed from Chewing
Tobacco to Zarda, by various impugned orders of the Lower Authorities.
10. Further Learned Advocate has drawn our attention to Rule 6(2) of
the said Rules of 2010 to support his contention that in terms of the sub-rule, the
proper officer was only required to consider the number of machines installed in
the factory and the rotation of the same and fix the assessee’s liability. It was not
open to him to examine the correct classification of the product.
However, we find no merits in the above contention of the Learned Ad-
vocate. Rule 6 of Chewing Tobacco and unmanufactured Tobacco Packing Ma-
chine (Capacity Determination and Collection of Duty) Rules, 2010 deals with the
filing of declaration of the units, giving the requisite information as detailed
therein. Sub-rule 2 of the sub-rule required the Deputy Commissioner to examine
the said declaration filed in sub-rule 1 and to make proper enquiries as may be
necessary including physical verification, for approval of the said declaration
and pass order concerning the annual capacity of production of the factory. He is
also authorized to direct modification in the plan or details of the part or section
of the factory premises intended to be used by the manufacturer for manufacture
of notified goods of different retail sale prices. Further sub-rule 2 to the said rule
is required to be considered for the purpose of calculation of his capacity deter-
mination or changes etc. in the number of machines. As such the cumulative
reading of the said rule and language used therein leads us to conclude that the

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