M/S Ma-Care, Shri K.K. Jhunjhunwala, ... vs Commissioner Of Central Excise, Pune on 19 September, 2001
Moreover for bringing the product under this heading, the product must have been obtained by swelling or roasting and that too of cereal or cereal products exclusively. Explanatory Notes to Heading 19.04 of HSN also corroborates this position. No doubt, these notes permit addition of salt, sugar, molasses, malt extracts, fruit or cocoa, but do not cover prepared foods obtained by swelling or roasting of products other than cereals or cereal products and further also do not admit any food obtained by processes other than swelling or roasting under this heading. This very view had been taken by the Tribunal also in TTK Pharma Ltd. v. CCE - 1993 (63) E.L.T. 446 and CCE, Coimbatore v. Nektar Food Products - 1996 (88) E.L.T. 421. In the latter decision, it has been made quite clear that where several processes are involved and the prepared food is not obtained by swelling or roasting only, it goes out of Heading 19.04 of the CETA and would be covered by Heading 2107.91 (corresponding to Heading 2108.09 of the present tariff). This very view has been followed by both the authorities below i.e. Assistant Commissioner as well as Commissioner (Appeals) for not classifying any of the products in dispute under heading 19.04 of the CETA. The department has placed much reliance on the Board's Circular No. 4/91-CX.1, dated 20-2-1991 but the same pertains to the classification of product 'Cheetos' which is obtained by swelling or roasting, of the corn paste, as is evident from Paras 2 & 3 of the circular. The Board, for that reason, directed the classification of this product under Heading 19.04 of
the CETA. But this circular is of no avail to the department in the present case, as none of the products in question satisfy the ingredients of any of the two parts of this heading, referred to above.