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2006 (3) TMI 761 - AT - Central ExciseClassification of a product named ‘BYTES’ manufactured on job work - classifiable under Chapter sub-heading 9005.39 which is a residuary entry instead of Chapter sub-heading 1905.31 which refers to “coated with chocolate or containing chacolate” for the residuary entry under sub-heading 1905.39? - benefit of concessional rate of duty - HELD THAT:- It is clear from the decision in NESTLE (INDIA) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI [1999 (5) TMI 371 - CEGAT, MUMBAI] that use of vegetable oil is prohibited in terms of PFA Act in manufacture of chocolates and in products of cocoa. In view of this position we are not agreeable with the revenue to classify the product under the heading 1905.31 as waffels and wafers coated with chocolate or containing chocolate carrying 16% duty. The ingredients used also does not bring the product under this heading. They are required to be classified only under the residuary entry “Others” under 1905.19. The wrappers of ‘BYTES’ examined. The appellants are not marketing the item as chocolates or waffels and wafers coated with chocolate. They are marketing them as “cadbury bytes crispy cocoa filled snack”. Hence the department’s contention to consider the item as waffels and wafers coated with chocolate or containing chocolate is required to be negatived by applying the Trade Parlance Test. Appeal allowed.
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