Customs, Excise and Gold Tribunal - Calcutta
Commissioner Of C. Ex. vs Jamshedpur Beverages on 12 August, 2002
Equivalent citations: 2003(151)ELT356(TRI-KOLKATA)
ORDER G.R. Sharma, Member (T)
1. The Revenue has filed this appeal being aggrieved by the order passed by the Id. Commissioner (Appeals) holding that the CEGAT in the case of Britco Foods Company Ltd.; (supplier of the input in the instant case) v. C.C.Ex., Pune, 2001 (127) E.L.T. 73 (T) also held that Non-Alcoholic Beverages Bases or concentrates (for manufacture of aerated waters) are classifiable under Heading 33.02 which is for the goods described therein "of a kind used in the food and beverage industry" and not under Heading 21.08 Thus, the Hon'ble Tribunal has also uphold the classification (3302.01) as determined by the Assistant Commissioner, Central Excise.
2. The facts of the case briefly stated are that the order passed by the Assistant Commissioner was reviewed by the Commissioner and an appeal was filed before the Commissioner (Appeals). The issue was whether nonalcoholic beverages bases or concentrates are classifiable under Chapter subheading 2108.10 as held by the Central Excise Department or under Chapter sub-heading 3302.00 as claimed by the assessee.
3. Arguing the case for the Revenue, Shri T.K. Kar, Id. SDR, submits that the decision of the Tribunal in the case of Britco Foods Company Ltd. v. C.C.Ex., Pune, has not been accepted by the Department. He contended that the goods in question are actually edible preparation not elsewhere specified which is appropriately covered under Chapter Sub-heading 2108.10 and which is specific so as to cover such preparation as the entry reads, "preparation for lemonade or other beverages intended for use in the manufacture of aerated water." He contended that non-alcoholic beverages/concentrates do not deserve classification under Chapter sub-heading 3302.10 because this heading covers mostly the items which are cosmetics, toilet preparation, etc. He also contended that Chapter sub-heading 3302.10 covers substances which are odoriferous in nature for the purpose of giving required pleasant smell in the manufacture of beverage. He, therefore, submitted that the goods are appropriately classifiable under Chapter subheading 2108.10 and prayed that the appeal may be allowed.
4. None appears for the respondent.
5. We have heard the submissions of the Id. DR. We have also perused the evidences on record. We note that the case was first examined by the Assistant Commissioner who dropped the proceeding holding that the goods in question will be classifiable under Chapter sub-heading 3302.00. When this issue was reviewed and an appeal was filed before the Id. Commissioner (Appeals), he also rejected the appeal of the Revenue.
6. We note that the issue of classification of non-alcoholic beverages bases or concentrates came up before the Tribunal in the case of BRITCO Foods Company Ltd. cited above. Examining the case, the Tribunal in para 10 held as under :-
"10. The Commissioner (Appeals) says that since "the product is in the nature of uniquely compounded formulation or preparations and not merely mixture with basis of one or more odoriferous substances as envisaged in chapter heading 3302", the classification claimed by the appellant cannot be accepted. He finds the goods to be "compound preparations, which characterise the branded aerated beverage which is made out of it". We are not able to see how the fact that these are formulations, which have been made up or compounded so to speak, to a particular requirement or a specific end-use takes them out of the scope of chapter heading 3302.10. It is clear to him that this heading does not cover such a "unique compounded formulation or preparations". We are however not able to find anything in the words of that sub-heading which would justify this view. As we have noted, sub-heading 10 of heading 3302 is for the goods described in the tariff heading "of a kind used in the food and beverage industry". There is nothing in these words to suggest or to justify an inference that it is only goods which can be put to more than one use which could be classifiable under this heading. The Commissioner, in his order, does not give any reasons for his conclusion nor was the Departmental Representative, who echoed that reasons, were able to give any reasoning. The two decisions of the Tribunal in Pepsi Foods Ltd. v. CCE and the unreported decision cited by the appellant indicate that the department itself had claimed classification of Mirinda, Lehar 7Up both of which are beverages similar to the beverages made, out of the products now under consideration, and in fact referred to in the notice to show cause as products classifiable under heading 3302. We agree with the Departmental Representative that these were not the issues specifically for consideration in this matter. However, these decisions certainly show the department's view that these are to be classifiable under heading 3302.10 and adds reinforcement to the submissions made by the appellant. The Tribunal held that the goods are classifiable under chapter Heading 3302."
7. Having regard to the findings of this Tribunal in the case of Britco Foods Company Ltd., we hold that the product in dispute i.e. non-alcoholic beverages bases/concentrates shall be classifiable under chapter sub-heading 3302.00. Appeal of Revenue is thus rejected.