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1. This is a Revenue appeal against O-I-A No. 19/2002-C.E., dated 31-1-2002. The Respondents have been served with notice through Commissioner. They have filed their cross-objections and have not appeared to argue the case. The DR was heard in the matter.

2. The assessees are manufacturing 'fryums'. They claim the same to be similar to the popularly known as 'papad' and to be consumed only after processing like frying. They had given a step by No. 5 of the Notification No. 5/99, dated 28-2-99 granted the benefit of exemption to goods falling under subheading 2108.99. The said Sl. No. 5 of the Notification reads as hereunder.

"Sweet meats, known as misthans or mithai or by any other name. Nam-keens, bhujia, mixture, chabena and similar edible preparations in ready for consumption form and papad."

The Revenue took the stand that 'fryums' do not fall under any of the items indicated in the Sl. No. 5 of the Notification. The Commissioner after detailed examination negatived the contention of the assessee that it falls within the description of the item in Sl. No. 5 of the Notification. The finding recorded by him in para 4 is reproduced herein below :

It is seen as per only Sl. No. 5 of the said Notification No. 5/99, dated 28-2-99 sweetmeats known as misthan or mithai or by any other name, namkeens bhujia, mixture, chabena and similar edible preparation is ready for consumption form and papad are fully exempted from payment of duty.
It is also observed from the nomenclature and the process of manufacture that the fryum manufactured by them are nothing but papads and their claim for the benefit of availing the benefit of exemption cannot be disputed.
In view of the above, I set aside the Order of the lower authority and the appeal filed by the appellants is allowed accordingly".

The Revenue contend that the "fryums" cannot be equated with "namkeens" and "papad". They stated it is an afterthought made for availing the benefit of the notification. It is stated that "fryums" are not marketed as papads but were marketed as namkeens ready to eat "fry snacks". The marketing/description on the pack described the product as namkeens and not as 'papads'. Hence the item being not papad should have been denied the benefit. They rely on the earlier Tribunal Order noted assessee's own case wherein the item has been held to be namkeens.