TMI Blog2005 (1) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... would not rule the classification to be arrived under the tariff based on HSN cannot be accepted, as the classification of the chocolate cream which forms a layer between two slices of biscuits cannot determine the classification of the biscuits itself. There is no material to consider that the biscuit is a cocoa product merely because of its certain percentage of cocoa which do not even predominate, were found in such entity. The entities are understood and have to be classified, as such they cannot be called chocolate for the reason as given. As regards the third ground taken by the appellant's of markings on their packages/wrappers to indicate them as chocolates that word chocolate advertised on them will not ipso facto lead the entities be classified as chocolate following the well settled law that advertised cannot be a guide or determinant to classification, as held by the Bombay High Court in the case of Blue Star Ltd. vs UOI [ 1979 (3) TMI 64 - HIGH COURT OF JUDICATURE AT BOMBAY] . Thus, we find no valid ground in Revenue's appeal to upset the same classification of the biscuits wafer in this case. The appeal is consequently rejected. - S/Shri S.S. Sekhon, Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143, under the heading Chocolate and Other Food Preparation containing Cocoa, Chocolate has been defined as under :- "Chocolate is composed essentially of Cocoa paste and sugar or other sweetening matter, usually with the addition of flavouring and Cocoa butter, in some cases, Cocoa powder and Vegetable oil may be substituted for Cocoa paste. Milk, Coffee, Hazelds nuts, almonds, orange peel etc. are some time also added. Chocolate and Chocolate goods may be put up either as blocks, slabs, Tablets. Nars, pastilles, croquettes, granules or powder or in the form of Chocolate products filled with cream, fruits etc." From the above, it is clear that Chocolate is essentially composed of Cocoa paste and sugar or other sweetening material with addition usually of flavour and Cocoa butter. However, in some cases Cocoa paste can be substituted with Cocoa powder and vegetable oil. Other things like milk, coffee etc. are also permitted to be added. Further Chocolate and Chocolate goods may be put in the form of Chocolate products filled with cream, fruits etc. thus, from this definition of Chocolate, the use of vegetable oil and cream is not out of the scope of Chocolate and Chocolate product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case in favour of the respondent. In taking from the ratio of this decision of the CEGAT' the Appellate authority also relied on the respondent's argument in which it has been stated that PFA Act does not permit use of vegetable oil in Chocolate, therefore, in the Chocolate Cream in which vegetable oil has been used, is not Chocolate. Above view of the Appellate Authority is misplaced here. As has been mentioned earlier before the introduction of Central Excise Tariff Act, 1985, the Central Excise Tariff was not arranged on the lines of international guidelines of BTN. Therefore, the dispute regarding Bourborn Cream was resolved taking the help from the ISI specifications. This position has changed with the introduction of Central Excise Tariff Act, 1985, as this Tariff has been arranged on the pattern of HSN. In case of any dispute regarding classification of products, the guidelines provided in the HSN are to be followed unless, there is, otherwise expressed intention in the Tariff. This position has been confirmed by the Hon'ble Supreme Court [CCE, Shillong v. Wood Crafts Ltd., [1995 (77) E.L.T. 23 (S.C.)]. In fact, in this case, the Hon'ble Supreme Court unequivoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oa as Chocolate preparation. But, he has not given any reason or authentic basis for it. He held such view without any authoritative support. In HSN definition of chocolate no fixed percentage of Cocoa use has been prescribed to be called as Chocolate for tariff classification. Fourthly, the quantity of Cocoa found in the test report is quite substantial and in the language of the rest report, the sample "Contains high per cent of Cocoa". This percentage of Cocoa cannot be said to have been used only for flavour specially in a situation where other ingredients for Chocolate preparation such as sugar, additives etc. have also been used in the Chocolate Cream preparation and the issue itself is whether with these ingredients, the preparation can be called Chocolate or not. Therefore, the Appellate Authority's view on this point is based on personal assumptions, which is not proper and legal. 4. The Appellate Authority also held that the mentioning of Chocolate cream on the respondents product, ipso facto, does not get covered under the heading wafer containing Chocolate, in reference to judgement of Hon'ble Supreme Court in case of M/s. Plasmac Machine Manufacturing Co. Ltd. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the trade parlance test of the Hon'ble Supreme Court is additionally available test ipso facto in absence of factual position. Therefore, the ratio of Hon'ble Supreme Court judgment in case of M/s. Plasmac Machine Manufacturing Co. Ltd. [1991 (51) E.L.T. 161 (S.C.)] to the effect of trade parlance test, is very much applicable in the subject case. Trade parlance argument for classification in the subject case is also applicable alternatively in the sense that the chocolate as such has not been defined in Chapter 19 of the tariff; chocolate has been defined under Chapter 18 of HSN. Where the disputed product is being considered for the classification, the trade parlance becomes decisive factor for arriving at the conclusion." 3. Considering the material on record it is found that based on the classification of the Chocolate Cream placed between two sliced biscuits-wafers and the fact that the said Chocolate cream would be classifiable under heading 1803 taken irrespective of the fact of percentage of Cocoa in the entity, the ground taken that the decision relied upon by the Commissioner (Appeals) in the appellant's own case vide order No. 802/86, dated 3-9-1986 [1986 (26 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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