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2. The facts in brief are that the appellant manufactured MMNF classifying it under Chapter sub-heading 2202 9020 as a lemon juice based drink and availing exemption under Notification No. 3/2006 C.E. dt. 01.03.2006, which notification grants total exemption to goods falling under this chapter heading. Department was of the view that the MMNF should have been classified under sub-heading 22021020 as Lemonade. It was contended by the appellant at the adjudication stage that the Central Excise Tariff is not fully aligned with the HSN Explanatory Notes, that the drinks based on fruit juice are specifically mentioned under heading 22029020, that the Tribunal in the case of CCE Bhopal Vs. Parle Agro Pvt. Ltd. reported in 2008 (226) ELT 194 (Tri.Del.) classified Appy Fizz as fruit juice based drink under Tariff Item 22029020, that similar product manufactured by their competitors are also being classified under Tariff Item 22029020, and in their own factories at Ghaziabad (UP) and Guntur (AP) the jurisdictional authorities have accepted classification of fruit juice based drinks under 2202 9020.

6.1. He further stated that the products sold in the open market which are lemonades such as Dukes Lemonade or Limca are Aerated and contain synthetic flavors, fall under chapter heading 22021010. He referred to the decision of Tribunal in the case of Parle Agro Pvt. Ltd.(supra) classifying Appy Fizz under Chapter Heading 22029020 which decision was maintained by Supreme Court in 2010 (254) ELT A13 (S.C.). It was strongly contended by the Ld. Counsel that in different plants of the appellants at Guntur, Dasna and in the State of Karnataka, MMNF is classified under CTH 22029020 as a fruit juice based drink and department cannot take different stands in different territories.

-Water, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored  2202 1010

---Aerated waters .

2202 1020

---Lemonade  2202 1090

---Other 2202 90

---Other.

2202 90 10

---Soya milk drinks, whether or not sweetened or flavored.

2202 9020

---Fruit pulp or fruit juice based drinks.

2202 9030

---Beverages containing milk  2202 9090

---Other.

We are in agreement with the Ld. Counsel that as per tariff structure and Rules for Interpretation, the single ? is the main entry under which the entries of three dashes --- will fall. In other words, lemonade is a sub- classification of Chapter heading 220210 which reads waters including mineral waters and aerated waters containing the added sugar or sweetening matter or flavor flavoured. The argument of learned counsel is that MMNF is neither mineral water nor aerated water nor flavored and, therefore, classification of MMNF, which contains lemon juice, under CTH 220110 does not arise. We cannot appreciate this argument and do not agree that MMNF cannot be called a flavoured drink. The word flavour in normal usage of the word will naturally include both natural and synthetic flavors. Therefore, addition of lemon juice to the water without aeration can make the product to fall under 220210. The reference that only products such as Dukes lemonade, a product made by a competitor, will fall under 22021020, is not acceptable because as noted above, the drinks that fall under 220210 may be aerated or not and may be flavoured or not. Further, the Duke lemonade has been shown to be a trade mark in the official web-site of concerned Trade Mark Authority. Therefore, it is not conclusively proved that just because Dukes lemonade contains no fruit and is still called a lemonade, it does not lead to the conclusion that the appellants product can not be called a lemonade. The reliance on judgement in the case of Parle Agro Pvt. Ltd. (supra), does not support the appellants contention because in that case the product, that is Appy Fizz, contains a far more higher and significant percentage of apple juice i.e. 23% whereas in the case of appellants product i.e. MMNF, the juice content is admittedly only 1%.