COMMISSIONER OF CENTRAL EXCISE, VAPIversusMIS. GLOBAL HEALTH CARE PRODUCTS PARTNERSHIP FIRM & ORS.

                        [2015] 8 S.C.R. 994


A         COMMISSIONER OF CENTRAL EXCISE, VAPI
                                 v.
            MIS. GLOBAL HEALTH CARE PRODUCTS
                  PARTNERSHIP FIRM & ORS.
B           (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
  records, classification of the same product in an earlier
0
  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 with said features was
  that in the instant case even Food and Drug Authorities
  (FDA) from where prior permission is needed for
F manufacturing 'toothpaste' and sale thereof, had not
  registered the product in question as 'toothpaste' but as
  a dental cleaner. It becomes a supporting factor along
  with other features of the product. [para 16] [1007 -B-H;
  1008-A-D]
G
                      Case Law Reference

      2008 (12) SCR 1223      referred to        para 12

            CIVILAPPELLATE JURISDICTION : Civil Appeal Nos.
H     5902-5909 of 2005
    COMMNR. OF CENTRAL EXCISE, VAPI v. GLOBAL                    997
     HEALTH CARE PRODUCTS PARTNERSHIP FIRM

       From the Judgment and Order No. A/204-211/WZB/ A
 2005-C-l I dated 11. 03.2005 of the Customs, Excise & Service
 Tax Appellate Tribunal, West Zonal Bench at Mumbai in Appeal
 Nos. E/805 to 807 and 836 to 840 of 2004 Mum.

                             WITH                                B
       Civil Appeal No. 3569 of 2006

        K. Radhakrishnan, Rupesh Kumar, S.A. Haseeb,
 Rashmi Malhotra, Jitin Singhal, B. Krishna Prasad for the
 Appellant.                                                C

       Ravinder Narain, Ajay Aggarwal, Mallika Joshi, Shravani
 Shekhar, Rajan Narain, Ruchika Singh for the Respondents.

        The Judgment of the Court was delivered by               o
         A. K. SIKRI, J. 1) The respondent No.1 (hereinafter
 referred to as the 'assessee') is engaged in the manufacture
 of different brands of toothpaste and these are manufactured
 exclusively for M/s. Hindustan Lever Limited, Mumbai (for short, E
 'HLL') since 1998. Major brands of HLL manufactured by the
 assessee are Close-Up Red, Close-Up Blue, Close-Up Green
 and Pepsodent falling under Chapter 33 of the Excise Tariff.
 The assessee is registered with the appellanURevenue and
 has been paying the excise duty on the aforesaid products F
 under Chapter sub-heading 3306.10 of the tariff. There is no
 dispute about these products.
          2) From July 01, 2001, a new product known as 'Close-
  Up Whitening' was introduced by the assessee. The assessee G
  classified this product under Chapter sub-heading 3306.90.
  The Revenue treated the aforesaid classification as erroneous
  as according to it Close-Up Whitening also falls under Chapter
· sub-heading 3306.10 and not 3306. 90. It also suspected that
                                                                 H
998       SUPREME COURT REPORTS                   (2015] 8 S.C.R.


A this product was deliberately misclassified in the said heading
  to evade payment of proper central excise duties by resorting
  to assessment of the product under Section 4 of the Central
  Excise Act, 1944 (hereinafter referred to as the 'Act') instead
  of assessment under Section 4A thereof. Investigation into
B the matter was initiated resulting into searching of the premises
  of the assessee. Some documents, which the Revenue claims
  to be incriminating in nature, were seized under Section 12 of
  the Act, including a Box File with Heading 'Production Manual',
  namely, the literature containing pages 1 to 235 issued by the
C Dental Information Centre of HLL.          ·

           3) On the scrutiny of these documents, the Revenue
  noticed that the difference in raw materials used for the product
  in question, namely, Close-Up Whitening, and the other
D products, i.e. Close-Up Red/Blue/Green is the additional
  presence of 2.8% and 0.2% w/s Silicon Agglomerate and Bluer
  Agglomerates respectively in Close-Up Whitening and
  absence of 0.1%wlw2,<1,4 Tri Chloro 2 hydroxy Diphenyl Ehter
  in this product in comparison with the other three products. It
E was also found that as far as Close-Up Whitening is concerned,
  there was presence of 'uniformity dispersed blue speckles'.
  Statements of certain persons were also recorded. On the
  basis of the aforesaid material, the Revenue took the position
F that the aforesaid differences did not change the essential
  character of the product in question which still remained
  'toothpaste' and, therefore, it was classifiable under Chapter
  sub-heading 3306.10.

          4) Show-cause notice dated March 21, 2002 was
G issued proposing confiscation of the goods and since these
  goods had already been provisionally released on payment of
  full excise duty as leviable on the goods under Chapter sub-
  h~ading 3306.10, show-cause notice stated as to why the
H am9unt of differential duty amounting to 1 22,64, 176 be not
 COMMNR. OF CENTRAL EXCISE, VAPI v. GLOBAL HEALTH               999
  CARE PRODUCTS PARTNERSHIP FIRM [A. K. SIKRI, J.]

confirmed under the provisions of Section 11A(1) of the Act A
and why redemption fine in lieu of confiscation as well as penalty
be not imposed. The assessee filed its reply thereto
contending that it was not a toothpaste and, therefore, rightly ,
classified by it under sub-heading 3306.90. The.
aforementioned contention of the assessee was brushed aside B
by the Commissioner in his Order-in-Original dated December
10, 2003, thereby confirming the excise duty demand as
mentioned in the show-cause notice. He, inter alia, recordea
the following findings in his order:
                                                                c
   "(i) Close Up Whitening was known in the market or to
   the trade and public as tooth paste for cleaning the teeth
   as such it was nothing but tooth-paste used for cleaning
   the teeth.
                                                                D
  (ii) Mis. Global Health Care Products in collusion with
  Mis. Hindustan Lever Ltd. by willfully suppressing the fact
  that Close-up Whitening was a variant of Close Up tooth
  paste classifiable under Tariff Heading 3306.10 failed to
  show particulars of classification, assessable value and      E
  duty leviable with an intention to evade payment of
  applicable central excise duties.

  (iii) The contention of Mis. Global Health Care products
  that the product Close Up Whitening was classified under      F
  chapter sub heading No. 3306.90 was not accepted.

  (iv) The said product was correctly classified under sub
  heading 3306.10 of the Tariff attracting the provisions of
  Section 4A of the Act."                                       G
       5) Aggrieved by the aforesaid order, the respondents
herein filed appeals before the Custom Excise & Service Tax
Appellate Tribunal, Mumbai (for short, the 'Tribunal'). These.
appeals have been allowed by the Tribunal vide impugned H
1000         SUPREME COURT REPORTS                   [2015) 8 S.C.R. ·


 A     order dated March 11, 2005. In "these appeals, validity and
       correctness of the aforesaid order of the Tribunal is questioned
       by the Revenue.

              6) Before proceeding further, it would be necessary to
 B     take note of the exact language of the relevant entries. As
       mentioned above, it is the entry Heading 3306 of Central
       Excise Tariff Act, 1985, which is attracted in the present case.
       The only question is as to whether the product in question is to
       be classified under sub-heading 3306.90 or 3306.10. Chapter
 C     Heading 3306 of the Tariff Act, with the aforesaid sub-
       h~adings, is reproduced below:


        33.06    Preparations for oral or dental hygiene, including
                 :fentifrices (for example, toothpaste and tooth
 D
                 powder and denture fixative pastes and powders)
        3306.10 Tooth powders and toothpaste

        3306.90 Other.
 E        7) The Chapter Heading makes it clear that it covers
   various preparations for oral and dental hygiene. These
   preparations specifically include dentifrices. Examples of such
   oral and dental hygiene are also given, like toothpaste, tooth
 F powder, denture fixative pastes and powders. Out of these,
   two products which are covered by sub-heading 3306.10 are
   toothpaste and tooth powder. Other oral and dental hygiene
   preparations fall under the reminder sub-heading, i.e. 3306.90,
   nomenclature of which is 'Other'. Further, as pointed out above,
 G the Revenue treats Close-Up Whitening as 'toothpaste'. The
   plea of the assessee, on the other hand, is that it is not
   toothpaste but a 'dental cleaner', which is different from
   toothpaste and, therefore, has to necessarily be covered by
   the residual sub-heading, i.e. 3306.90. Therefore, the moot
 H question is as to whether Close-Up Whitening is toothpaste
.COMMNR. OF CENTRAL EXCISE, VAPI v. GLOBAL HEALTH                1001
  CARE PRODUCTS PARTN.ERSHIP FIRM [A. K. SIKRI, J.]

or not. If it is found to be toothpaste then the stand of the A
Revenue would be justified. On the other hand, ifthe product
does not qualify to be a toothpaste, then the assessee stands
vindicated.

         8) Having noticed the controversy involved, we would B
like to point out the main ingredients of the product at this stage:
         There is no dispute that most of the ingredients of the
product Close-Up Whitening are the same which are used in
the manufacture of the other products, namely, Close-Up Red/ c
Blue/ Green, which are treated as toothpaste by the assessee
itself. There are, however, additional ingredients used in the
manufacture of the product in question, which are accepted
by the Revenue also and noticed above. Apart from additional
presence of Silicon Agglomerate and Bluer Agglomerate of o
specified percentage and absence of Tri Chloro 2 hydroxy
Diphenyl Ether, there is a presence of uniformity dispersed
blue speckles in Close-Up Whitening. There is also additional
step of 'addition of silica agglomerates'. In fact, it is this
ingredient which felicitates at getting uniformity dispersed E
speckles. It is on the basis of these additional factors, one
has to determine as to whether Close-Up Whitening loses the
character of toothpaste and assumes the characteristics of
another product, namely, dental cleaner.
                                                                 F
       9)A reading of the order of the Commissioner, to which
our attention was drawn by Mr. K. Radhakrishnan, learned
senior counsel appearing for the appellant, with much.
emphasis, would disclose that the Commissioner relied upon
HSN Notes, i.e. Harmonized Commodity Description and G
Coding System, wherein the preparation of oral and dental
hygiene is mentioned in the followi.ng form:

  33.06 •    PREPARATIONS FOR ORAL OR DENTAL
             HYGIENE, INCLUDING DENlURE FIXATIVE H
1002      SUPREME COURT REPORTS                    [2015] 8 S.C.R.


 A                PASTES AND POWDERS: YARN USED TO
                  CLEAN BETWEEN THE TEETH (DENTAL
                  FLOSS),   IN INDIVIDUAL   RETAIL
                  PACKAGES.

 B     3306.10 Dentifrices

       3306.20    Yarn used to clean between the teeth
                  (dental floss)

       "3306.90 Other
 c
           This he.ading covers preparations for oral or dental
       hygiene such as:

       (I) Dentifrices of all types:
 D
       (1) Tooth pastes and other preparations for teeth. These
       are substances or preparations used with a toothbrush,
       whether for cleaning or polishing the accessible surfaces
       of teeth or for other purposes such as anticaries prophylactic
 E     treatment.

           Toothpastes and other preparations for teeth remain
       classified in this heading, whether or not they contain
       abrasives and whether or not they are used by dentists.

 F     (2) Denture cleaners, i.e., preparations for cleaning or
       polishing dentures, whether or not they contain agents with
       abrasive properties.
       (II) Mouth washes and oral perfumes.
 G
       (Ill) Denture fixative pastes, powders and tablets.

            The heading also covers yarn used to clean between
       the teeth, in individual retail packages (dental floss)."

 H         10) The Commissioner, thus, noted that in the HSN
 COMMNR. OF CENTRAL EXCISE, VAPI v. GLOBAL HEALTH 1003.
  CARE PRODUCTS PARTNERSHIP FIRM [A. K. SIKRI, J.]

 Notes, sub-heading 3306.1 O deals with dentifrices. The A
 Co.mmissioner noted that the meaning of dentifrices as per
 the Concise Oxford Dictionary is 'a paste or powder for
 cleaning of teeth'. On that basis, he concluded that the product
 in question was paste, namely, the toothpaste for cleaning the
 teeth and, therefore, would fall under sub-heading 3306.10. B
 En passe, the Commissioner also observed that there is no·
 major difference in these products, namely, Close-Up
 Whitening and Close-Up Red/ Blue/Green, except one
 ingredient used in the manufacture of Close-Up Whitening and
 the addition of that ingredient does not change the purpose, C
 nature as well as definition of the product in a common market
 parlance. He observed that in the market the product was
 known as toothpaste. He also observed that it is treated as
 toothpaste as per the product manual issued by the Dental D
 Invocation Centre, Mumbai. Discussion is summed up in para
 32 of the order passed by the Commissioner, which reads as
·under:
    "32. As narrated in the SCN that the tooth paste, being
    dentifrice has been correctly classified under the HSN         E
    and the Central Excise Tariff has been based on HSN.
    Accordingly it is essential to follow the correct
    classification of the product in question as described and
    classified under the relevant chapter of HSN. In· this
                                                                   F
  · connection it may be mentioned that the Hon'ble
    Supreme Court in the case of CCE, Shillong vs. Wood
    Craft Product Ltd. Reported in 1995 (77) ELT 23 (SC) in
    para 18 has held that the structure of Central Excise Tariff
    is based on the internationally accepted nomenclature          G
    found in the HSN and therefore any dispute relating to
   tariff classification must, as far as possible be resolved
   with reference to the nomenclature indicated by the HSN.~.
    unless there be an express different intention indicated'··
    inthe Central Excise Tariff Act, 1985 itself.                  H
1004       SUPREME COURT-REPORTS                   [2015) 8 S.C.R.


 A           Further it may be mentioned that the Hon'ble
        Bombay High Court in the case of Jagdish D. Devgekar
        Vs. Collector of Central Excise, Poona reported in 1978
        (2) ELT (J581) in para 6 has held thatthe correct test in
        interpreting any item mentioned in the first schedule to
 B      the Central Excise Act is to see the commercial sense in
        which the item is understood or the sense in which traders
        or persons dealing in that terms understand it and not
        the technical or scientific sense.
 c          Even it may be mentioned that the Hon'ble Tribunal
       in case Veto Co. Vs. CCE reported in 1992 (62) ELT
       584 (T) in para 6 has held that the goods have to be
       classified under the tariff schedule according to their
       popular meaning or as they are understood in their
 D     commercial sense and not as per their scientific or
       technieal meaning. While holding so the Hon'ble Tribunal
       has referred to the observations of the Hon'ble Supreme
       Court's judgment in case of Plasmac Machine Mfg. Co.
       Pvt. Ltd. Vs. CCE reported in 1991 (51) ELT 161 (SC)
 E     (Para 13)."

          11) The aforesaid approach adopted by ttie
   Commissioner has been found fault with by the Tribunal. The
   Tribunal pointed out that there was material difference in the
 F sub-heading 3306.10 in the Indian statute when contrasted with
   Harmonized Commodity Description and Coding System.
   Whereas, as per the tariff entry 3306.10 in the Excise Act, it is
   'tooth powder' and 'toothpaste', under the Harmonized
   Commodity Description and Coding System, what is
 G mentioned is '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 cleaners, than tooth
 H powders and toothpaste. Thus, when under Indian statutory
 COMMNR. OF CENTRAL EXCISE, VAPI v. GLOBAL HEALTH 1005
  CARE PRODUCTS PARTNERSHIP FIRM [A. K. SIKRI, J.]

regime there is a restricted sub-heading under 3306.10, A
namely, tooth powder and toothpaste only, the approach of the
Commissioner in taking aid of HSN Notes was erroneous.
Discussion on this aspect runs as follows:
   "A perusal of the HSN notes would indicate that all three    B
  types of 'Dentifrices' are recognized as (i) 'Toothpaste',
   (ii) Other preparations for teeth, and (iii) 'Denture
   cleaners'. The Note further explains that "Dentifrices" to
   include 'toothpaste' and "other preparations for teeth"
  whether for cleaning or polishing the assessable surface      c
   of teeth or for other purposes such an Anticaries
   prophylactic treatment. The Note also enumerates that
   'toothpaste' and 'other preparations for teeth' remains
  classified under Heading 3306 whether or not they .
  contain abrasives and whether or not they are used by         D
  dentist. The correct scope of the heading as per the
  submission of the appellants is that when one refers to
  HSN item 3306 and the bifurcations as also under CETA
   1985 there is a variance seen. In other words, this
  bifurcation under Heading 3306 for HSN and is not pari        E
  materia and under CETA 1985 and therefore the sub
  heading structure of HSN would not apply to CETA. The
  CETA proves preparation for oral or dental hygiene
  including Dentifrices and Denture Fixative paste and
                                                                F
  powders under Heading 3306 and at the four digit level
  it is para material HSN. The scope of sub heading
  3306.1 Oof CETA 1985 restricts it to only 'tooth powder
  and paste' and any entity which is not a 'toothpowder or
  toothpaste' would be covered under heading 3306.90.           G
  This submission has to be upheld."
       We find ourselves in agreement with the aforesaid
approach of the Tribunal having regard to the cogent reasons
given by it.
                                                                H
1006             SUPREME COURT REPORTS                    [2015) 8 S.C.R.


 A          12) This Court in the case of Camlin Limited v.
   Commissioner of Central Excise, Mumbai~ held that if the
   entries under HSN and the entries under the Central Excise
   Tariff are different, then reliance cannot be placed upon HSt.
   Notes for the purposes of classification of goods under Central
 B Excise Tariff. This is so stated in para 24 of the judgment that
   makes the following reading:

            "24. In our considered view, the Tribunal erred in relying
            upon the H~N for the purpose of marker inks in classifying
 C          them under Chapter Sub-Heading 3215.90 of the said
            Tariff. The Tribunal failed to appreciate that the entries
            under the HSN and the entries under the said Tariff are
            completely different. As mentioned above, it is settled
            law that when the entries in the HSN and the said Tariff
 D          are not aligned, reliance cannot be placed upon HSN r
            the purpose of classification of goods under the said Tariff.
            One of the factors on which the Tribunal based its
            conclusion is the entries in the HSN. The said conclusion
            in the order of the Tribunal is, therefore, vitiated and,
 E          accordingly, set aside. We agree with the findings
            recorded by the Commissioner (Appeals)."

            13) The issue, therefore, has to be decided dehors
       HSN Notes as aid thereof cannot be taken in the instant case.
 F
           14) Faced with the aforesaid position, Mr.
   Radhakrishnan argued that the Commissioner has also come
   to the conclusion that mere addition of one ingredient does
   not change the purpose, nature as well as character of the
 G product and further the product was known in the market as
   'toothpaste'. The Tribunal has differed with the aforesaid view.

              15) In the first place, it is pointed out that there is no
       evidence on record placed by the Revenue which would reflect
 H     1   (2ooa) s sec a2
 COMMNR. OF CENTRAL EXCISE, VAPI v. GLOBAL HEALTH 1007
  CARE PRODUCTS PARTNERSHIP FIRM [A. K. SIKRI, J.]

that the product in question is known to the consumers as A
toothpaste. When this was pointed out to Mr. Radhakrishnan,
he was unable to pinpoint any evidence in support that was
led by the Revenue.                                    ·

        16) We may record that a finding is arrived at by the B
Tribunal to the effect that Close-Up Whitening is not a
toothpaste but a dental cleaner. We are convfnced that this
finding is perfectly just and proper for the following reasons:
   (a) The Tribunal has pointed out the differences which
   are noted above and accepted by the Department itself.
                                                                  c
   From these differences, it is held that ingreaients and
   ratio of all the inputs which go into the manufacturing of a
   toothpaste and dental cleaner are different and varying.
   The dental cleaner, in addition, has two more ingredients,     D
   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
  the total stages for manufacturing toothpaste were nine,        E
  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
  to effect the manufacture of Close-Up Whitening.
                                                                  F
  (c) Statement of one Mr. N.H. Bijlani, the only expert in
  this case and whose statement was recorded on January
  09, 2002, was referred to by the Tribunal. In this
  statement, Mr. Bijlani has explained the difference
  between toothpaste and dental cleaners and has opined           G
  that Close-Up Whitening dental cleaner cannot be
  equated with toothpaste.
  (d) The Tribunal has also found that as per records,
  classification of the same product in an earlier avtar/
                                                                  H
1008          SUPREME COURT REPORTS                 [2015) 8 S.C.R.


 A        brand 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, observed that
          mere change of duty and brand name cannot be the
 B        reason to alter classification.
          (e) Another important aspect, in conjunction with
          aforesaid features which has to be kept in mind, is that
          in the instant case even Food and Drug Authorities (FDA)
 c        from where prior permission is needed for manufacturing
          'toothpaste' and sale thereof, had not registered the
          product in question as 'toothpaste' but as a dental
          cleaner. It becomes a supporting factor along with other
          features of the product, which have been taken note of
 D        and discussed above.
           17) The upshot of the aforesaid discussion would be to
   hold that Close-Up Whitening dental cleaner is not a 'toothpaste'
   but other form of dental hygiene and, therefore will have to be
 E classified under sub-heading 3306.90 as a consequence.
   These appeals are found bereft of any merits and are,
   accordingly, dismissed.
               No costs.

 F     Devika Gujral                                 Appeals dismissed.