Page 248 - ELT_1st August 2020_Vol 373_Part 3

430 EXCISE LAW TIMES [ Vol. 373

Flavoured Chewing Tobacco, Zarda or Pan Masala, knows
about the brand Baba and its rich heritage; popularly called as
‘Baba Zarda’.
(iii) As per the website www.indiaonlinegrocery.com, Baba flavoured
Chewing Tobacco better known as ‘Baba Zarda’.
(iv) As per the website noida.all.biz/baba-jarda, Baba flavoured
Chewing Tobacco better known as ‘Baba Zarda’.
(v) As per the website wikimapia.org, Dharampal Premchand Ltd.,
well-known by its world famous brand ‘Baba Zarda’.
5.1.4.4 Further, the glossary of the term for tobacco and tobacco products
(Third revision of IS 10335) ICS 65.160 for BIS use at para 2.185 had termed
Zarda as “a chewing tobacco product made of highly scented and flavours
tobacco flakes, chewed along with betel nuts &, paan (betel leaf).” The rep-
resentative of the party during the submissions made on 16-2-2016 before
the Deputy Commissioner, Central Excise Division II, Noida-I, himself ad-
mitted that the product in question was made by adding saffron and scent-
ed flavours along with other ingredients.
Therefore, in view of the discussion above, I conclude that the Baba Fla-
voured Chewing Tobacco should be classified as Jarda Scented Tobacco
falling under CETH No. 2403 99 30 of the Central Excise Tariff Act, 1985. As
regards party’s contention with regard to market parlance and market en-
quiry I find that when clear-cut classification of the goods is determinable
with reference to the Central Excise Tariff, there is no requirement for any
market enquiry or for resorting to market parlance. Test of market parlance
and supporting market enquiry is relevant only when classification is com-
petitive and cannot be decided merely by referring to the Central Excise
Tariff Act, 1944. The case laws of CCE v. Jaya Satya Marine Exports - 2001
(131) E.L.T. 3 (S.C.) and CCE v. Vicco Laboratories - 2005 (179) E.L.T. 17 (S.C.)
cited by the party are not relevant as I have already discussed that the test
of market parlance is relevant only when classification of the goods is oth-
erwise not possible with reference to the Central Excise Tariff Act, 1985.
On the issue of classification I would like to further state that Rule 1 of the
Rules for interpretation of the Schedule to the Central Excise Tariff Act,
1985, states that classification shall be determined according to the terms of
the headings and any relative section or chapter notes and, provided such
headings or notes do not otherwise require, according to other provisions
of rules. It has been held in a number of cases that these rules are required
to be applied only if classification is not possible on the basis of tariff entry
read with Chapter notes and Section notes. The case law relied upon are
Track Parts Corporation v. CC - 1992 (57) E.L.T. 98 (CEGAT), L.M. Van
Moppes Diamond Tools India Ltd. v. CC - 1986 (24) E.L.T. 623 (CEGAT), Hin-
dustan Gas v. CC - 1990 (49) E.L.T. 548 (CEGAT). Further in case of CCE v.
Simplex Mills Co. Ltd. 2005 (181) E.L.T. 345 (S.C.) it has been held that Rule 1
gives primacy to the section and chapter notes with terms of the heading.
They should be first applied if no clear picture emerges, then only one can
resort to subsequent rules. Further, I find that the trade parlance is relevant
only when Statue does not define the words. If words are defined in the
Statue, trade parlance is not relevant (held in Indo International Industrial v.
CST, UP - 1981 (8) E.L.T. 325). HSN and Rules of Interpretation override
trade parlance as held in OK Plast (India) v. CCE - 2005 (180) E.L.T. 380 (SC).

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