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Showing contexts for: bubbling in Joyco India Pvt. Ltd. vs Commissioner Of C. Ex., Chandigarh on 2 April, 2002Matching Fragments
3. Shri S. Madhavan, learned Chartered Accountant, submitted that the appellants manufacture Bubble Gum which was classified by them under sub-heading 1704.90; that the period involved in the present matter is from 23-7-97 to 31-5-98; that the Appellate Tribunal in the case of Gum Products (P) Ltd. v. CCE, Madras [1987 (27) E.L.T. 360] has held that the Bubble Gum is different from Chewing Gum and is not classifiable under Tariff Item 1A(1) of the Erstwhile Central Excise Tariff as Chewing Gum, and is classifiable under Tariff Item 68; that the Supreme Court rejected the appeal filed by CCE, Madras as reported in - 1997 (91) E.L.T. 249 (S.C.) holding that the view taken by the Tribunal is plausible view. Learned Chartered Accountant, further, submitted that the Appellate Tribunal in the case of CCE, New Delhi v. Prefetti India Ltd. has held vide Final Order No. 713/99-D, dated 20-10-99 that Bubble Gum is an item commercially different from Chewing Gum. He also mentioned that the Commissioner (Appeals) in the impugned Order has classified the impugned product under sub-heading 1704.10 by referring to the Explanatory Notes of HSN; that a perusal of the relevant Explanatory Notes would clarify that these goods are with regard to the main Heading 17.04 and not with regard to sub-heading 1704.10; that the Explanatory Note reads as follows:
"This Heading covers most of sugar preparations and includes, inter alia gums containing sugar (including sweetened Chewing Gum and the like)";
that this Explanatory Note supports the classification of Bubble Gum under sub-heading 1704.90; that Bubble Gum which is undoubtedly a gum containing sugar, but which is equally, undoubtedly not a Chewing Gum under subheading 1704.10 which Heading is relevant for Chewing Gum alone; that the Supreme Court in the Gum Products decision has already held that the Bubble Gum is commercially known as different item in the market and is not the same as Chewing Gum and, therefore, no reliance could be placed on the Dictionary Meaning of Chewing Gum. He also placed reliance on the decision in the case of BPL Pharmaceutical Ltd. v. CCE, Vadodara - 1995 (77) E.L.T. 485 (S.C.) wherein it was held that classification of goods depends on true nature of the product and the fact that there is some difference in old and new Tariff Entries would not change the character of the product.
4. Countering the arguments Shri Hitesh Shah, learned JDR submitted that the decision in the case of Prefetti India is not applicable to the facts of the present matter as rival Headings in dispute in that matter were 17.04 and 21.08 of the Central Excise Tariff. There was no dispute about the product within 1704 itself. He further, submitted that the Tribunals' decision in Gum Products case was based on the ISI specifications for Chewing Gum and Bubble Gum, according to which there are difference in the proportion in which ingredients are required to be present in two types of gums; that on the basis of different specifications, the Tribunal came to the decision that both the products are commercially different products; that the Supreme Court also treated them as commercially different product on account of different ISI specifications; that the Bubble Gum is also being chewed and the only difference is that bubbles can be produced by blowing which is not the case with Chewing Gum. The learned JDR thus, contended that the term Chewing Gum used in sub-heading 1704.10 will cover Bubble Gum also as it is like Chewing Gum only.
5. We have considered the submissions of both the sides. Heading 17.04 of the Central Excise Tariff at the relevant time reads as under :
"17.04 Sugar confectionery (including white chocolate), not containing cocoa 1704.10 - Chewing gum, whether or not sugar coated 1704.90 - Other"
5.1 Under the old Central Excise Tariff, Tariff Item 1A(1) was applicable to Chewing Gums. The interpretation of this Tariff item came up for consideration of the Tribunal in the case of Gums Products Pvt. Ltd. where the Revenue's case was that since the Bubble Gum is also required to be chewed and is a gum it is nothing but Chewing Gum. The Tribunal did not find substance in the submissions of the Revenue and held that Chewing Gum cannot be used to produce bubbles by blowing while Bubble Gum has that use. This is the essential and characteristic difference between the two gums; apart from the difference in the proportion in which different ingredients exists in the two gums. The Tribunal also observed that by using the plural words Chewing Gums under Tariff Item 1A(1) different kinds of Chewing Gums would be covered by the said entry but Bubble Gum is not the same thing as Chewing Gum and it cannot be considered to be covered by the said entry. -The Supreme Court on appeal, in the case of CCE, Madras v. Gum Products Pvt. Ltd. confirmed the decision of the Tribunal by observing as under :