Customs, Excise and Gold Tribunal - Delhi
Cadbury India Limited vs Commissioner Of Central Excise on 28 April, 1999
Equivalent citations: 1999(65)ECC138, 1999ECR527(TRI.-DELHI), 1999(111)ELT362(TRI-DEL)
ORDER
P.C. Jain, Vice President
1. The short question involved in this appeal is regarding durability of an intermediate product described as 'wheat flour sheet' consumed in the course of manufacture of chocolates called 'Krisp'.
2. Appellant's case is that this intermediate product is not marketable. No vegetable oil, sugar, flour or essence etc. are added to it. It is made from a machine in a dimension of 10' x 18' sheet which is thereafter cut to proper size for pasting of chocolates therein.
3. Learned Advocate Shri Rohan Shah for the appellants has submitted that the classification of this product was the subject matter of an appeal before the Tribunal in the case of Collector of Central Excise, Pune v. Hindustan Cocoa Products Ltd., reported in 1996 (87) E.L.T. 420 (Tribunal) under the old Tariff. Department intended to levy duty under Tariff Heading No. 1C as biscuits or under Tariff Heading 68 of the erstwhile Tariff. Tribunal, however, found, accepting the plea of the respondent therein, that the product is not marketable.
4. However, we observe that in the impugned order the Adjudicating Authority has relied upon market enquiry report and compared with another product being sold in the market to arrive at the decision that the product is marketable and therefore, its classification under Tariff Heading 1905.11 as wafer or biscuit.
5. Accordingly, the learned JDR was asked to bring on record a copy of the said market enquiry as also the sample of two products, namely, the product under consideration before us and the product with which the comparison was made. Learned JDR has now received report from the Commissioner of Central Excise of which a copy has been placed on record. In the said report, it is written by the concerned Collector that no such enquiry was formally conducted nor even the product with which the comparison has been made in the impugned order was actually in existence now. As regards the sample of the product under consideration, the appellants are no longer manufacturing the same. In this connection, we will reproduce para 3 of the report from the concerned Commissioner of Central Excise vide his letter F. No. Tri. Cell-241/93, dated 8-4-1999 :-
"To establish the marketability of the product manufactured by the assessee, support of similar products such as Pickwick of M/s. Primlaks Wiffles Pvt. Ltd., and Monita Icecream wafers of M/s. Shipoo Icecream was taken and no special market enquiry was conducted for the product manufactured by the assessee. The reliance was placed on marketability of similar products of other units. It is not case of the assessee that the product obtained is unsaleable."
6. In view of the Commissioner's report, as above, the very basis of the impugned order holding the product as marketable is knocked down. Accordingly, the impugned order is not sustainable, on this ground alone. Hence we set it aside and allow the appeal with consequential relief to the appellants.