Customs, Excise and Gold Tribunal - Delhi
Ashoka Foods Ltd. vs Collector Of Customs on 29 January, 1987
Equivalent citations: 1989(42)ELT409(TRI-DEL)
ORDER Harish Chander, Member (J)
1. Ashoka Foods Ltd., Hyderabad had filed a revision application to the Additional Secretary, Ministry of Finance, Department of Revenue, New Delhi being aggrieved from order-in-appeal No. C3/2587/1980, dated 28th December, 1981 passed by the Appellate Collector of Customs, Madras. The said revision application stands transferred to the Tribunal in terms of the provisions of Section 131B of the Customs Act, 1962.
2. Briefly the facts of the case are that the appellants had imported ice cream cone baking machine Type KTA 18-E and the same was assessed to duty under Heading 84.30(1) of the Customs Tariff Act, 1975. The appellants had made a claim for refund before the Assistant Collector on the ground that the imported machine will fall under the Heading 84.26 or under Heading 84.59(2). The Assistant Collector had held that ice cream cone baking machine was rightly classified under Heading 84.30(1) as the ice cream cone is a baking product, and had rejected the refund claim. Being aggrieved from the aforesaid order the appellant had filed an appeal before the learned Appellate Collector of Customs, Madras. The learned Appellate Collector had observed that the cone itself may not be a food yet it is eaten alongwith the ice cream and can be considered as confectionery and falls under Heading 84.30(1). She had rejected the appeal. Being aggrieved from the aforesaid order the appellants have come in appeal before the Tribunal.
3. Shri N.C. Sogani, the learned Consultant has appeared on behalf of the appellants. He has reiterated the contentions made in the Revision application. He has pleaded that the appellant had given up the plea of Project Import before the lower authorities and he also gives up the plea of assessment under Heading 84.26. He pleads that the imported ice cream cone baking machine falls under Heading 84.59(2). He has pleaded that ice cream cone is not a food and is a commodity, and the machine imported by the appellants is to be used for the manufacture of a commodity so it rightly falls under Heading 84.59(2) of the CTA. In support of his arguments he has referred to a judgment of the Hon'ble Allahabad High Court in the case of Annapuma Biscuit Mfg. Co. and Anr. v. State of U.P. and Anr. reported in 1978 E.L.T. (J 657) where the Hon'ble Allahabad High Court had held that "Confectionery is essentially a sweet-meat, while 'biscuits' is a kind of dry bread in which sugar is almost insignificant ingredient. In salted biscuits sugar is not used at all. Therefore, 'Biscuits' cannot be said to be 'confectionery'." He has pleaded that the Assistant Collector while rejecting the refund claim had observed that the imported machine is to be used for the manufacture of bakery whereas the Appellate Collector had observed that the same is to be used for the manufacture of confectionery. He has pleaded that the cones manufactured by the appellants did not contain sugar or may contain a very insignificant percentage of sugar and as such the cones which are manufactured by the imported machine cannot be treated as Confectionery and his case is fully covered by the judgment of the Hon'ble Allahabad High Court in the case of Annapurna Biscuit Mfg. Co. and Anr. v. State of U.P. and Anr., 1978 E.L.T. (J 657). In support of his arguments he has also referred to the CCCN Headings 19.07 and 19.08 which relates to bakery products. He has pleaded for the acceptance of the appeal.
4. Shri J. Gopinath, the learned Senior Departmental Representative who has appeared on behalf of the respondent has pleaded that the ice cream cone baking machine imported by the appellants rightly falls under Heading 84.30(1) and the lower authorities had rightly rejected the claim of the appellants. In support of his arguments he has referred to the dictionary meaning of Ice Cream Cone appearing on page 1020 of Websters Dictionary and as per that Dictionary Ice Cream Cone is a crisp conical wafer usually above five inches long holding ice cream. He further states that the wafer as per the same dictionary is a thin crisp cake or craker, a thin cake or piece of bread usually unleavened. In support of his arguments Shri Gopinath has referred to a judgment of the Hon'ble Andhra Pradesh High Court in the case of International Foods v. Collector of Central Excise, Hyderabad reported in 1978 E.L.T. (J-50) where the Hon'ble High Court had held that wafer is a kind of biscuit, although it may be different in size and shape. Shri Gopinath, the learned Senior Departmental Representative has pleaded that the ice cream cone baking machine imported by the appellants makes the cones by the process of baking and as such it was rightly assessed under Heading 84.30(1), and the appeal filed by the appellants needs to be dismissed.
5. Shri N.C. Sogani, the learned Consultant in reply states that there is no force in the arguments of the learned Departmental Representative. An ice cream cone cannot be equated with a wafer. He has pleaded for the acceptance of the appeal.
6. We have heard both the sides and have gone through the facts and circumstances of the case. There is no dispute that the appellants had imported ice cream cone baking machine. Heading 84.30(1) is reproduced below:-
84.30 Machinery, not falling within any other heading of this Chap-
ter, of a kind used in the following food or drink industries;
bakery, confectionery, chocolate manufacture, macaroni, ravioli or similar cereal food manufacture, the preparation of meat, fish, fruit or vegetables (including mincing or slicing machines), sugar manufacture or brewing:
(1) Not elsewhere specified (2) Sugar manufacturing and refining machinery.
A simple perusal of the heading shows that if the machine imported is used in the food industry, which relates to the manufacture of Bakery or Confectionery, the same will fall under Heading 84.30(1). Hon'ble Supreme Court in the case of S.B. Sugar Mills v. Union of India reported in A.I.R. 1968 S.C. 922 had held that as the Act does not define goods the legislature must be taken to have used that word in its ordinary dictionary meaning. This judgment of the Hon'ble Supreme Court was considered in the case of International Foods v. Collector of Central Excise, Hyderabad reported in 1978 E.L.T. J-50 cited by the learned Departmental Representative. Dictionary meaning of Ice Cream Cone as per Webster Dictionary is reproduced below: -
Ice Cream Cone:- a crisp conical wafer usually about five inches long holding ice cream.
Hon'ble Andhra Pradesh High Court in the case of International Foods had held that wafer is a kind if biscuit, although it may be different in size and shape. Since there is no meaning of bakery in the Act we have to resort to the dictionary meaning and once the dictionary meaning is accepted in view of the Hon'ble Supreme Court's judgment in the case of S.B. Sugar Mills v. Union of India (A.I.R. 1968 S.C. 922), we are of the view that ice cream cone is a bakery product. Accordingly, we hold that ice cream cone baking machine imported by the appellants falls under Heading 84.30(1). The judgment cited by Shri N.C. Sogani, the learned consultant does not help him. In view of the above observations we do not find any merit in the appeal. The appeal is dismissed.