Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs Dinshaw Frozen Foods on 3 February, 1999
Equivalent citations: 1999ECR387(TRI.-DELHI), 1999(106)ELT340(TRI-DEL)
ORDER
P.C. Jain, Vice President
1. Briefly stated the facts of the cases are as follows :-
2. The respondents herein filed classification lists for the 3 products as below :-
1. Softy (Plain) Mix.
2. Softy (Choco) Mix. Claiming classification under Tariff Heading 1901.90.
3. Softy (Shake) Mix. Claiming classification under Tariff Heading 1901.90.
The Assistant Collector, however, classified the aforesaid product under Tariff Heading 1901.90 for Softy (Plain) Mix and Softy (Choco) Mix. He classified the product Softy (Shake) Mix under Tariff Heading 2202.90.
3. Against the aforesaid order of the Assistant Collector the lower appellate authority has remanded the matter in so far as the product Softy (Plain) Mix is concerned on the ground of that it was not a subject matter of the show cause notice issued to the respondents herein. He, however, classified the product Softy (Choco) Mix, Softy (Shake) Mix under Tariff Heading 1901.90. He also extended the benefit of Notification No. 9/90-C.E.
4. It is against the aforesaid order that the Revenue has come in appeal before the Tribunal.
5. Matter was called, but none has appeared on behalf of the respondents, despite the notice of hearing having been sent to them on 16-10-1998. Hence we have heard ld. SDR Shri Satnam Singh for the Revenue in support of their appeals.
6. In so far as Softy (Plain) Mix is concerned, we agree with the finding of the lower appellate authority that the Assistant Collector did not issue any show cause notice for change in classification of the product Softy (Plain) Mix and, therefore, it has been rightly remanded by the lower appellate authority to the Assistant Collector for re-adjudication.
7. As regards the second product namely Softy (Choco) Mix the lower appellate authority has allowed the benefit of Notification 9/90-CE., dated 20-3-1990 on the ground that it does not contain Cocoa powder at all. It contains only chocolate and chocolate is not a prohibited item in terms of said Notification for granting the benefit.
8. Reasoning of the Revenue on the other hand is that, the chocolate contains Cocoa powder, and therefore, when the product Softy (Choco) Mix contains chocolate, it ipso facto contains Cocoa powder and therefore, the benefit of Notification 9/90-C.E. cannot be extended to the said product. We are unable to accede to the aforesaid submission of the ld. SDR. Chocolate is a separate product by itself although it may be, inter alia, prepared out of cocoa powder. Chocolate powder cannot be treated as Cocoa powder itself which is one of the prohibited item in Notification 9/90-C.E. Reason given by the lower appellate authority is well taken and no objection can be taken thereto. Accordingly, we do not find any substance in the submission of the ld. SDR that the benefit of Notification 9/90-C.E. should not be extended to the product Softy (Choco) Mix. Hence Revenue's Appeal on this score is dismissed.
9. Next is the question of classification of the product Softy (Shake) Mix. It is contended by the Revenue that it is preparation of milk inasmuch as it contains about 87% milk as mentioned in the impugned order it is a ready-to-serve beverage which is obviously non-alcoholic beverage. It is therefore, clearly covered under the scope of Tariff sub-heading 2202.90, as is apparent from a description of the said heading.
As against the aforesaid submission of the Revenue and as originally found by the original authority, lower appellate authority has held that there is no basic difference between the preparation of all that 3 products mentioned above. Only thing is that the last product namely Softy (Shake) Mix does not contain any Vanila or any other essence. Therefore, its classification also would have to be held as under Tariff Heading 1901.90 as in the case of the above product.
10. We have carefully considered the submissions of the ld. SDR as also the finding of the lower appellate authority. We observe that the lower appellate authority has forgotten to appreciate the fact that, 'ready-to-serve beverage' is implied under the description of Tariff Heading 22.02. Food preparations of milk and cream as mentioned under 19.01 would not cover preparations of the nature of ready-to-serve beverages. Preparations of milk covered under Tariff Heading 19.01 would cover milk preparations which can be served after mixing with water or boiled water or milk to make it a beverage. There being no doubt that the product Softy (Shake) Mix is ready-to-serve beverage. Therefore, it is proper to classify it, under Tariff Heading 2202.90. Consequently the benefit of Notification 9/90-C.E. also cannot be extended because it is applicable to the product falling under some heading of Chapter XIX. Therefore, on this score we accept the appeal of the Revenue so far as classification of Softy (Shake) Mix is concerned.
11. The demand of duty requires to revised in the light of above findings since no question of limitation in respect of demand has arisen earlier. Appeals disposed of in the above manner.s