M/S. Mistair Home Products Vs. Commissioner of Central Excise, - Court Judgment

Excerpt:

.....that the government had filed as slp in the supreme court. he refers to the copy of the jurisdictional commissioner's letter to the special monitoring cell requesting for a copy of the slp. he requests that the present proceedings not be concluded until the copy of the reply is received.5. this letter is over 5 months old and does not seem to have produced any reaction at all. on this g round we do not wish to delay the disposal of this case.6. we have seen the composition of the contested goods and the components of the nycil prickly heat powder. the composition is similar although same of the components are different.7. as was stated before the commissioner (appeals), the products in the cited case as well as in the present case are specifically designed to alleviate the ill effects of heat. therefore the classification as held by the hon'ble high court under heading 3003 would stand attracted. the appeal is allowed with the consequential relief if any.

Judgment:

1. When the matter was called out, we find that the appellants were not present. The record shows that on the earlier occasions also, they remained absent. We therefore proceed to decide the appeal on the basis of the documents on record.

2. The dispute in the case is on the classification of "Tender Care Prickly Heat Powder". The claim of the appellants was that it would merit classification under sub-heading 3003.20. The Assistant Collector classified the same under sub-heading 3007.20. Before the Commissioner in appeal the assessees claimed that their products were similar to Nycil Prickly Heat Powder which was being classified under sub-heading 3003.10. The composition of both the products was shown to the Commissioner (Appeals). The Commissioner (Appeals) agreed with the contentions that sub-heading 3007.20 was not called for, but did not accept classification under sub-heading 3003.10 either. He felt that the correct classification would be 3304.00. On his remanding the matter back to the Assistant Collector, the appeal was filed.

3. In our record note on 20.10.2000 we had directed the appellants to clarify whether the Assistant Collector had taken any actin in pursuance of the Commissioner (Appeals) order. There is no response from the appellants. Shri BK Choubey has also no information on his ground but seeks time to make due inquires.We do not accede to this request.

4. In the aforesaid record note we had mentioned that the Judgement of the Delhi High Court in the case of Manisha Pharma Plasto Pvt. Vs.

union of India [1999 (112) ELT 22]. In this judgement the Hon'ble High Court had quashed the Board Circular No.356/72/97 CEX dt.20.11.97 and had classified Nycil Prickly Heat Powder under sub-heading 3003 denying the contention that the appropriate classification was under sub-heading 3304. Shri BK Choubey submits that the Government had filed as SLP in the Supreme Court. He refers to the copy of the Jurisdictional Commissioner's letter to the Special Monitoring Cell requesting for a copy of the SLP. He requests that the present proceedings not be concluded until the copy of the reply is received.

5. This letter is over 5 months old and does not seem to have produced any reaction at all. On this g round we do not wish to delay the disposal of this case.

6. We have seen the composition of the contested goods and the components of the Nycil Prickly Heat Powder. The composition is similar although same of the components are different.

7. As was stated before the Commissioner (Appeals), the products in the cited case as well as in the present case are specifically designed to alleviate the ill effects of heat. Therefore the classification as held by the Hon'ble High Court under heading 3003 would stand attracted. The appeal is allowed with the consequential relief if any.