Per Shri V.P. Gulati :

The issue in the appeal relates to the demand of duty from the appellants on the product which has been described by them as Aqua Dermis intended for use as human body wash and which has been held to be assessable by the learned lower authority under Tariff Heading 3307.90 as Cosmetics and Toilet Preparation not elsewhere specified. The appellants seek classification of the same under Tariff Heading 3401.01. The appellants filed a declaration in terms of Notification 175/86 in terms of which they were clearing the goods under payment of duty. They were clearing their product as falling under Tariff Heading 3401.01 during the period 4.10.1990 to 31.3.1991 and thereafter they filed another declaration under which they showed their product as Organic Surface Active Agent falling under Tariff Heading 3402.90 and in terms of this declaration they made the clearances during the period 1.4.1991 to 20.12.1991.

2. The learned Advocate at the outset after his submissions pleaded that he is giving up his plea for consideration of the goods as falling under Tariff Heading 3407.90 and is urging his plea only for assessment of the goods under Tariff Heading 3401.10 i.e. soap in any form. He has pleaded that the term 'soap' will encompass the appellants' item. He also pleaded that he accepts the position that so far as the clearances which were made in 1991-92 in terms of the second declaration filed holding the goods to be Organic Surface Active Agent falling under Tariff Heading 3402.90 is concerned, the declaration regarding classification as filed was not correct. He has pleaded however by change of classification from 3401.10 to 3402.90 the Revenue was not prejudiced as the rate of duty under both the headings at the relevant time was 25% as at the relevant time the various Tariff Headings which were urged and which have been taken note of in the impugned order are reproduced below for convenience of reference :

3. The learned Advocate for the appellants has pleaded that the appellants during the year 1990-91 declared their product as soap in any form falling under tariff heading 3401.10 carrying a rate of duty of 25% as the product was understood by appellants as soap and was used as soap. He pleaded that in the year 1991-92, however, they changed the description to Organic Surface Active Agent Anionic used for body wash as they were advised by their Consultant since they were merely carrying out mixing of Emulsifier 500 a surface active agent, with water and perfume and no new product emerged and they declared the tariff heading for their product under heading 3402.90, based on the classification of the input namely Emulsifier 500 and shown as falling under heading 34.02 in the gate passes. He pleaded that the authorities got the product tested and the Departmental Chemist after testing the product referred to their own literature and has stated that the product 'Acqua dermis' is in the form of green colour viscous with pleasant odour and is a acqueous preparation containing soap and organic surface active agents etc. and opined that the goods would merit classificat