Customs, Excise and Gold Tribunal - Delhi
Cce vs Parle Agro Pvt. Ltd. on 18 March, 2008
ORDER
S.S. Kang, Vice President
1. The Revenue filed this appeal against the order passed by the Commissioner (Appeals) whereby Commissioner (Appeals) held that product Appy Fizz is classifiable under sub heading No. 22029020 of Central Excise Tariff on the ground that the product is fruit juice based drink.
2. The Revenue challenged the order on the ground that the same is classifiable under sub-heading No. 22021010 of Central Excise Tariff as aerated water.
3. The contention of the Revenue is that the Commissioner (Appeals) has ignored the chemical examiner's report and Ministry of Food and Processing Industries opinion and which was on record and held in favour of the respondents. The contention of the Revenue is that since the product in question is aerated, therefore, is classifiable as flavoured aerated water. The Revenue also relied upon the HSN Explanatory notes in support of their claim.
4. The contention of the respondent is that as per the certificate given by Ministry of Food and Processing Industries, New Delhi the product in question contains 23% of apple juice. As the product in question is juice based drink, therefore, rightly classifiable under sub-heading No. 22029020 of the Tariff. The respondents also relied upon the chemical examiner's report to submit that there are 13.7% by weight are soluble solids in the product. The respondent also relied upon the text to Prevention of Food Adulteration Rules 1955 to submit that fruit beverage or fruit drink must contain total soluble solids not less than 10%.
5. For ready reference relevant sub-heading is reproduced below:
2202 Waters, including mineral waters and aerated
waters, containing added sugar or other
sweetening matter or flavoured, and other non-
alcoholic beverages, not including fruit or
vegetable juices of Heading 2009.
2202 10 Waters, including mineral waters and aerated
waters, containing added sugar or other
sweetening matter or flavoured:
2202 10 10 Aerated waters
9902 10 20 Lemonade
2202 10 90 Other:
2202 90 Other:
2202 90 10 Soya milk drinks, whether or not sweetened or
flavoured
2202 90 20 Fruit pulp or fruit juice based drinks
2202 90 30 Beverages containing milk
2202 90 90 Other
6. The Revenue relied upon HSN Explanatory Notes of Chapter 22. We find that our tariff is not fully digned with the HSN Explanatory Notes. In the HSN Explanatory Notices there are two sub-headings under Heading No. 2202 - one is 'water including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured' and second is in respect of others. Whereas an Central Excise Tariff under Sub-heading No. 2202 there are specific headings in respect of soya milk, drinks etc. As per the Central Excise Tariff, the waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured are classifiable under sub-heading No. 2202.10. The drinks based on fruit juice are specifically classifiable under Heading No. 22029020 of the Tariff. In the present case, there is no dispute regarding the contents of the product. Revenue is not disputing the certificate given by the Ministry of Food and Processing Industries, New Delhi rather they are relying it on the ground of appeal, and as per the certificate, the product in question contains 23% of apple juice, therefore, we find no infirmity in the impugned order. The appeal is dismissed.
(Dictated & pronounced in open Court)