Customs, Excise and Gold Tribunal - Delhi
Cce vs Banas Kantha Distt. Co. Op. Milk ... on 23 October, 1998
Equivalent citations: 1999(107)ELT182(TRI-DEL)
ORDER P.C. Jain, Member (T)
1. The controversy in the present case is whether sweetened partly skimmed milk powder (SPSMP) is the same as sweetened skimmed milk powder (SSMP). Lower appellate authority/has, relying on Punjab and Haryana High Court judgment in the case of A/L/3. Food Specialities Ltd., reported in 1991 (51) E.L.T. 310 (P & H) has held that they are two products and are different. Hence the benefit of Notification No. 4/90 has been extended to the SPSMP. It is against the aforesaid findings that the Revenue has come in appeal before us.
2. Revenue's sole ground is that Chapter Note I of Chapter 4 equates skimmed milk, partly skimmed milk and full cream milk within the expression 'milk' used in Chapter 4. Therefore, partly skimmed milk powder and skimmed milk powder, according to the Revenue, are one and the same thing. And hence, benefit of notification is not applicable to the partly skimmed milk powder since it is the same thing as skimmed milk powder according to the Revenue.
3. We have heard the ld. JDR. We are unable to accept the contention of the Revenue. The position is now well settled by the Apex Court judgment reported in 1998 (97) E.L.T. 402 (S.C.) by which Union of India's appeal against the judgment of Punjab and Haryana High Court in Food Speciality case has been dismissed. Accordingly we dismiss this appeal of the Revenue.
4. Before we part with this product, we must record that the ld. JDR's submissions, that in the present case the respondents have conceded the classification of partly skimmed milk powder to be put in unit container under Tariff sub-heading 0404.13. Admission of this sub-heading itself by the respondents does not create estopple against them. Issue in our view is fully settled. Therefore, this plea taken by the ld. JDR does not effect the impugned order. Hence the dismissal of the appeal.