Customs, Excise and Gold Tribunal - Tamil Nadu
Kerala Co-Op. Milk Marketing ... vs C.C.E. on 12 August, 1997
Equivalent citations: 1999(112)ELT191(TRI-CHENNAI)
ORDER
V.P. Gulati, Vice President
1. The issue in the appeal relates to the classification of goods which are described as REFRESH. The learned Chartered Accountant fairly concedes that the issue stands covered against the assessee by the ratio of the decision of this tribunal. In the case of the very same party vide our Order No. 1100/97, dated 16-4-1997 where in the case of similar products, the tribunal has held that the goods will be assessable under Tariff Heading 2202.90. He has no other judgement to cite in support of his plea for assessment of the goods under Tariff Heading 2001.10.
2. Heard the learned JDR for the department. We observe that on similar facts in para 5 of the above order, we have held is as under :-
"5. We have considered the submissions of both the sides. It is now an admitted fact that this point is covered by our above cited decision wherein at para 3 & 4 we have held as follows :
The provisions of explanatory Notes to Ch. 2009, page 154 of Harmonized Commodity description and coding system is as under :
"However the addition of water to a normal fruit or vegetable juice, or the addition to a concentrated juice of a greater quantity of water than is necessary to reconstitute the original natural juice, results in diluted products which have the character of beverages of Heading 2202. Fruit or vegetable juices containing a greater quantity of carbon dioxide than is normally present in juices treated with that product ( aerated fruit juices), also lemonades and aerated water flavoured with fruit juice are also excluded (Heading No. 2202)."
The fruit pulp based drinks are correctly classified under CET 2202.90 by virtue of explanation notes and also by considering the provisions of Notification No. 87/91, dated 11-9-1991 issued for fruit based drinks under Heading 2202.90."
3. At this stage, the learned Chartered Accountant pleaded that the demand should have been raised prospectively and in this connection he cited the judgment of the Hon'ble Supreme Court in the case of Bhiwani Textile Mills reported in 1996 (17) RLT 1126 (S.C.) wherein the Hon'ble Supreme Court held this view. It was pointed by the learned C.A. Shri R. Subramoney that in the case of Ballarpur Industries Ltd v. Asst. Collector of Customs & C.Ex., the three judges bench of the Hon'ble Supreme Court has held that the demand could be raised for the past period of 6 months also. In our order cited supra at para 6 we have taken the following view :-
"Therefore, following our earlier decision and for reasons stated therein, we hold that the above operations are classifiable under 2202.90 and there are merits in the appeals in this regard. With respect to the demand for the prior period, it is seen that the issue is squarely covered by the decision of the Hon'ble Supreme Court ( 3 Hon'ble Judges), and, therefore, we follow the decision of the Hon'ble Supreme Court in this respect and hold that the demand can be made retrospectively for the past period of 6 months. In the premises, there is no merit in the appeal and, therefore, the same is dismissed. Therefore following the ratio of our earlier decision and also the ratio of the decision of the Hon'ble Supreme Court, we hold that there is no force in the plea of the Chartered Accountant and we therefore dismiss the appeal."
4. We observe that we have held that the goods are classifiable under 2202.90 and also that the demand could be raised for the past period. The learned C.A. informs us that the notification under Section 11C had been issued for part of the period. We observe that so far as the demand is concerned, the lower authority will demand the duty after taking into consideration this notification, if applicable to the appellants.