Per G.N. Srinivasan :

These appeals have been filed against the Order-in-Appeal No. SDK (1005 to 1015) 714 to 724/98 dated 31.07.1998 confirming the Orders-in-Original No. 78 to 80/97/AC.FII dated 5.9.1997 confirming the total duty amount of Rs. 1,65,35,034/-.

2. The appellants are engaged inter alia in the manufacture and marketing of soaps, detergents, personal products, speciality chemicals, exports and other institutional activities. They are manufacturing bathing bar commonly known as 'soap' in their factory at Haji Bunder, Sewri, Mumbai and marketing and selling the same under the trade mark 'Dove'. The appellants commenced commercial production of manufacturing of DOVE BATHING BAR in their Haji Bunder factory after filing classification list under chapter heading 3401.10 some time in December, 1993. It was provisionally approved and was cleared on payment of duty at 20% during the period January 1994 to June 1994. On 20.6.1994 the appellants filed another classification list in respect of the same product seeking to classify it under Heading 3401.20 attracting basic excise duty at 30% ad valorem. The appellants reclassified DOVE BATHING BAR after ascertaining the inputs used in the manufacture of the product and on their own without being called upon by the department and also paid the differential duty at 10% in respect of the earlier clearances made from January, 1994 to June, 1994.

3. A show cause notice dated 9th September, 1994 was issued by the Assistant Commissioner to the appellants requiring them to reply as to why the bathing bar under the trade name Dove not be reclassified under chapter heading 3304 attracting basic excise duty at 70% ad valorem from 15.12.1993 and attracting excise duty ad valorem w.e.f. 1.3.1994. By their letter dated 30.1.1995 a reply was filed and written submission was filed by their letter dated 19.11.1996. Several show cause notices were issued by the Superintendent demanding differential duty. The charge against the appellants was that there was report of the Deputy Chief Chemist therefore on the basis of the same the classification was sought to be changed from 3401 to 3304. A copy of the test report was not given. It was sought to be replied that the Deputy Chief Chemist nowhere suggested that the DOVE BATHING BAR was not a bathing bar but only opined that DOVE BATHING BAR is not a soap. It was never the case of the appellants that DOVE BATHING BAR is a soap attracting duty under Heading 3401.10. It was stated in the reply that under the Drugs and Cosmetics Act and the Rules framed thereunder read with the standards of Toilet Soaps as well as Bathing Bar laid down by Bureau of Indian Standards, Toilet Soaps are so technically known where total fatty matter is in excess of 60%. BATHING BARS are products in which TFM content is less than 60% since these are performance based standards and not input based standards. Further it is stated, for technical reasons, Dove bathing bar, even though commonly perceived, understood, known and bought as a toilet soap but is described as a bathing bar. It was further submitted in the reply to show cause notice that the technicalities cannot replace the well settled and understood principle of classification i.e. the classification is to be based on common man's trade perception of the goods. On the basis of the reply the Assistant Commissioner confirmed the show cause notices. In doing so he held that it was agreed that DOVE contains more than 1/4th moisturising cream comprised of 23%, 5% moisture and PH 6 to 7 i.e. very mild acidic or neutral and 1.5% perfume. The product DOVE is cosmetic preparation as beauty bar and used for care of the skin and does not dry skin like soap. Therefore the said product comes under chapter sub-heading 3304. Against these orders several appeals were filed before the Collector of Central Excise, Mumbai who by the impugned orders confirmed the same holding that it was not the case of the appellants that the subject