LexCOMMISSIONER OF CENTRAL EXCISE, VAPI versus MIS. GLOBAL HEALTH CARE PRODUCTS PARTNERSHIP FIRM & ORS.
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[2015] 8 S.C.R. 994 A COMMISSIONER OF CENTRAL EXCISE, VAPI B v. MIS. GLOBAL HEAL TH CARE PRODUCTS PARTNERSHIP FIRM & ORS. (Civil Appeal Nos. 5902-5909 of 2005 Etc.) JULY28, 2015 [A. K. SIKRI AND R. F. NARI MAN, JJ.] c Central Excise Tariff Act, 1985: Subheading 3306. 10, 3306. 90- Close-Up Whitening dental cleaner - Classification - Held: Is not a 'toothpaste' but other form of dental hygiene and, therefore classifiable D under sub-heading 3306. 90. HSN entries - Reliance on - Held: If the entries under HSN and the entries under the Central Excise Tariff are different, then reliance cannot be placed upon HSN Notes E for the purposes of classification of goods under Central Excise Tariff. Dismissing the appeals, the Court · HELD: 1. There is no dispute that most of the F ingredients of the product Close-Up Whitening are the same which are used in the manufacture of the other products, namely, Close-Up Red/Blue/ Green, which are treated as toothpaste by the assessee itself. There are, however, additional ingredients used in the manufacture G of the product in question. Apart from additional presence of Silicon Agglomerate and Bluer Agglomerate of specified percentage and absence of Tri Chloro 2 hydroxy Di phenyl Ether, there is a presence of uniformity dispersed blue speckles in Close-Up Whitening. There H 994 COMMNR. OF CENTRAL EXCISE, VAPI v. GLOBAL 995 HEALTH CARE PRODUCTS PARTNERSHIP FIRM is also additional step of 'addition of silica agglomerates'. A In fact, it is this ingredient which felicitates at getting uniformity dispersed speckles. [para 8) [1001-C-E] 2. The Tribunal pointed out that there was material difference in the sub-heading 3306.10 in the Indian B statute when contrasted with Harmonized Commodity Description and Coding System. Whereas, as per the tariff entry 3306.10 in the Excise Act, it is 'to_oth powder' and 'toothpaste', under the i'iarmonized Commodity Description and Coding System, what is·mentioned is C 'dentifrices'. It is further noticed by the Tribunal that dentifrices was more generic in nature as it recognized all three types of products, namely, (i) toothpaste, (ii) other preparations for teeth and (iii) denture cleimers, than tooth powders and toothpaste. Thus, when under Indian D statutory regime there is a restricted sub•heading under 3306.10, namely, tooth powder and toothpaste only, the approach of the Commissioner in taking aid of HSN Notes was erroneous. If the entries under, HSN and the entries under the Central Excise Tariff are Cliffe rent, then E reliance cannot be placed upon HSN Notes for the purposes of classification of goods under Central Excise Tariff. The issue, therefore, has to be decided dehors HSN Notes as aid thereof cannot be taken in th~ instant F case. [Para 11to13] [1004-F-H; 1006-A-B, F; 1005-~] Camlin Limited v. Commissioner of Central Excise, Mumbai 2008 (12) SCR 1223: 2008 (9) sec 82 '"'" referred to. G 3. A finding by the Tribunal that Close-Up Whitening is not a toothpaste but a dental cleaner was perfectly just and proper for the reasons: (a) The ingredients and ratio of all the inputs which go into the manufacturing of a toothpaste and dental cleaner are H 996 SUPREME COURT REPORTS [2015] 8 S.C.R. A different and varying. The dental cleaner, in addition, has two more ingredients, namely, Silicon Agglomerate and Bluer Agglomerates, which play an active role as abrasive; (b) Even the manufacturing process of Close- Up toothpaste and Close-up Whitening is different. While B the total stages for manufacturing toothpaste were nine, the number of stages for manufacture of Close-Up Whitening 'were eleven. It takes 120 minutes to manufacture a toothpaste tube, while it takes 155 minutes C to effect the manufacture of Close-Up Whitening; (c) The only expert in this case explained the difference between toothpaste and dental cleaners and opined that Close- Up White.ning dental cleaner cannot be equated with toothpaste; (d) The Tribunal also found that as per 0 records, classification of the same product in an earlier avtarlbrand was acceptable to the Department as the same was classified under a different name for all these years when the rate of duty under Heading 3306.90 were higher than that under Heading 3306.10. It, thus, E observed that mere change of duty and brand name cannot be the reason to alter classification; (e) Another important aspect, in conjunction wi
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