DABUR INDIA LTD. Vs. CCE

JUDGEMENT

(1.) M/s. Dabur India Ltd. have filed these three appeals against the classification of 'Gulabari' under Heading 33.03 of the Schedule to the Central Excise Tariff Act and confirmation of demand of Central Excise duty against them.

(2.) Shri B.L. Narsimhan, learned Advocate, ubmitted that the appellants manufacture 'gulabjal' under the patent name 'gulabari' which is classified by them as a patent ayurvedic medicament under heading 3003.30 of the Schedule to the Central Excise Act; that a show cause notice dated 19.9.97 was issued to classify the product under sub -heading 3303.00 on the ground that the product is 'toilet water'; the Assistant Commissioner, under Order -in -riginal No. 100/97 dated 11.12,97, classified the impugned product under Heading 33.03 and confirmed the demand of Rs. 1,14,78,517.00, which was deposited by them under protest; that their appeal was rejected on merit by the Commissioner (Appeals), but remanded for uantification of the demand from the period 1.7.97 by Order -in -Appeal dated 25.5.99; that the Tribunal, however, vide Final Order No. 47/2000 -C dated 14.1.2000, held that the department has not substantiated their claim that the impugned product is 'toilet water' classifiable under heading No. 33.03 by adducing any evidence and, ccordingly, the demand of Central Excise duty was set aside; that the Tribunal, after holding that the product is not classifiable under heading No. 33.03, observed as under:

(3.) Learned Advocate, further, submitted that on receipt of the said Tribunal's Final Order, they filed a refund claim; that, however, the department mis -construed that the Tribunal has given it another opportunity of redetermining the classification in the very same proceedings and accordingly the fresh proceedings were started to classify the product; that the department drew the samples, which were sent to the Chemical Examiner, who desired that the appellants should be asked to submit the manufacturing process for the product and the reference standard of 'oil of rose' in order to find out exact constituent present therein alongwith fresh samples; that the information required was provided by them under their letter dated 15.6.2001; that the Deputy Commissioner redetermined the classification of the impugned product under Heading 33.03 under Order -in -original No. 83/2001 dated 27.12.2001, which has also been confirmed by the Commissioner (Appeals) under the impugned Order -in -Appeal Nos. 148 -49/2003 dated 31.3.2003. He also mentioned that since the period October 1997 to 18.12.97 was not covered by the order passed by adjudicating authority, the Assistant Commissioner passed a Memorandum Order No. 54/98 dated 2.4.98 confirming the demand of duty for the said period. The said order was reviewed by the Commissioner (Appeals) under Section 35E of the Central Excise Act on the ground that the assessable value was arrived at wrongly; that the said appeal, tiled by the revenue, has been decided by the Commissioner (Appeals) under the impugned Order -in -Appeal No. 167/03 dated 17.4.2003 holding that the correct amount of duty would be Rs. 14,68,330.38.