HINDUSTAN UNILEVER LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THIS is an application seeking waiver of pre -deposit of duty of Rs. 6.50 crores and equal amount of penalty imposed under Rule 173Q of erstwhile Central Excise Rules, 1944 read with Section 11AC of CEA, 1944. At the outset, the ld. Advocate Ms. Padmavati Patil, for the applicant submitted that the issue involved in the present case relates to classification of "Rexona" under Chapter sub -heading No. 3401.00 or under 3307.30, as alleged by the Department. The ld. Advocate submits that the issue is squarely covered by the judgment of this Tribunal in the case of Wipro Ltd. v. Contmr. of Central Excise, Bangalore reported in : 2001 (136) E.L.T. 885 (Tri. -Chennai) and also in their own case Hindustan Lever Ltd. v. Collector of Central Excise, Mumbai reported in : 2000 (121) E.L.T. 451 (Tribunal). The ld. Advocate further submitted that appeal against the order of the Tribunal in Hindustan Lever Ltd.'s case has been upheld by the Hon'ble Supreme Court dismissing [2002 (146) E.L.T. A214 (S.C)] the appeal filed by the Department. The ld. Advocate submits that subsequently, in their own case, the Commr. of Central Excise, Puddichery while examining the classification of goods sold by them under brand name Hamam, Lux, Lifebuoy, Rexona Saffron, Rexona Sandal and Rexona Coconut, dropped the proceedings initiated against them and held that the goods are classifiable under Chapter subheading 3401.10 of CETA, 1985 vide Order -in -Original No. 16/188/2002 -CX Adj., dated 31 -10 -2008. She has also submitted that similarly, the periodical demand notices issued for the period May, 1993 to May, 2002, involving classification of goods viz. Lifebuoy, Lux, Rexona, Joy, Breeze, etc., were also dropped by the Commissioner of Central Excise, Kolkata -V Commissionerate vide order No. 16/Commissioner/CE/Kol, dated 20 -3 -2009. The ld. Advocate further submitted that in view of the said binding precedents and subsequent orders in their favour, they have a strong case on merit.

(2.) LD . A.R. for the Revenue reiterated the findings of the ld. Commissioner. Heard both sides and perused the records. Prima facie, we find that the issue relates to classification of the goods manufactured by the applicant viz. Lux, Rexona and between two competing sub -headings viz. 3401.10 and 3307.30 of CETA, 1985. It is the claim of the Department that the goods in dispute are classifiable under sub -heading 3307.30 and not as bathing bar as claimed by the appellant under Chapter sub -heading 3401.10. We find this Tribunal in the case of Wipro Ltd. and also in the applicant's own case discussed in detail the merit of classification of similar products and arrived at a conclusion that the said goods are classifiable under Chapter Heading 3401.10 and not under 3307.30 as claimed by the Revenue. The ld. Commissioner has though referred to this judgment but observed that it has not reached finality as the appeal against the Tribunal's order had been dismissed by the Hon'ble Supreme Court without considering the merit. We are not impressed with the said observation of the ld. Commissioner as the judgments of the Tribunal are binding on him. Also we find from the record that for subsequent periods following the said decision similar goods had been classified under Chapter sub -heading 3401.90 which had also not been appreciated by the ld. Commissioner even though the said orders were placed before him. Taking into consideration the aforesaid circumstances, we are of the prima facie view at this stage that the applicant's products are classifiable under Chapter sub -heading 3401.10 as claimed by the applicant. In the result, the applicant could be able to make a prima facie case for total waiver of dues adjudged and accordingly all dues adjudged is waived and its recovery stayed during the pendency of the appeal. S.P. allowed.