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2016 (9) TMI 1130 - AT - Central ExciseClassification - Milk Shake Mixes - whether they are to be classified under Chapter Heading 1901.90 90 of Central Excise Tariff as per Revenue or under 0404 as claimed by the assessee - Held that:- by considering the CESTAT's decision in the case of Amrit Foods Vs. CCE, Meerut-I [2006 (3) TMI 523 - CESTAT, NEW DELHI] endorsed by Hon ble Apex Court in the case of CCE, Vs. Amrit Food [2015 (9) TMI 1269 - SUPREME COURT], we hold that the Milk Shake Mixes are rightly classifiable under Chapter Heading 0404 only. Classification - flavoured syrups/fruit syrups/Squashes - whether they are to be classified under Chapter Heading 21069040/2169050 as per Revenue or under Chapter 20 of Central Excise Tariff as per assessee - Held that:- it is found that the appellant has not given complete ingredients of the subject items; they have only conveyed that products have got more than 25% fruit contents. The Explanatory Notes to HSN for Chapter Heading 2009 inter alia mention that wherever greater quantity of water has been added, the resultant diluted product may have the character of the beverages of Heading 22.02, but the classification under Chapter 22.02 has not been argued by any side in the present proceedings i.e. either by the Revenue or by the assessee/appellant. The Revenue specifically pleads for classification under Chapter Heading 21069040 and 21069050. Consequently, from the records available and the submissions given by both sides, when no other alternative classification like Heading 22.02 etc. has been cited by either the appellant or the Revenue, and after considering the description given for the Chapter 2106 of Central Excise Tariff as well as the Explanatory Notes to HSN for Chapter 2106 mentioned above, we are of a considered view that the subject items are to be classified under Chapter Headings. 21069040/2106905. Notification No. 3/2005-CE dated 24.2.2005 - benefit of exemption - eligibility - chocolate syrup, Butter Scotch, Blue curacao, Grenadine, Mint, Orange, Triple Seed, Caramel, Natural Caramel, Vanila, Lime - goods sold without brand name of assessee - Held that:- the appellant claims that goods were unbranded whereas the Revenue says that there was no sufficient evidence produced by the appellant to prove that the goods were unbranded. We remand the case back to the original adjudicating authority for decision afresh on this issue within three months of receipt of this order, where the appellants would be given opportunity of hearing and production of evidence, if any, in respect of branding or unbranding of the goods. Notification No. 3/2005-CE dated 24.2.2005 - benefit of exemption - eligibility - Mixed Seasoning Chinese Flavour - Held that:- the appellant contended that both the conditions of Notification No. 3/2005 that goods be in other than unit container and be not bearing the brand name, have been fulfilled. There is clear finding that goods are in unit container. The appellants say that the goods were in unit container up to 28.2.2005. Further from the facts on record for the period after 29.2.2005 it is not proved that the goods were not bearing the brand name. It means that the assessee/appellants in any case are not entitled to the benefit of the Notification No. 3/2005 for these goods up to 28.2.2005. Therefore, the demand of duty of Central Excise on all these goods for the period up to 28.2.2005 is hereby confirmed. However, for the period after 28.2.2005, the matter is remanded back to the original adjudicating authority to decide afresh within three months of receipt of this order. Invokation of extended period of limitation - demand and imposition of penalty - wilful suppression or mis-statement of facts - intention to evade payment of duty - Held that:- there is no material on record to prove wilful suppression or any mis-statement of facts with intention to evade payment of duty of Central Excise on the part of the appellants. Therefore, it is held that liability of duty of Central Excise can be fixed only for the period of one year from the relevant date. Consequently, demand beyond the period of one year from the relevant date is time barred as per the provisions of law of Central Excise. As there is no wilful suppression or mis-statement with intention to evade payment of duty of excise by the appellants, the penalties imposed of ₹ 71,83,194/- on the appellant No. 1 under Section 11AC of Central Excise Act, 1944 and of ₹ 2,00,000/- on appellant No. 2, Shri Rajiv Behl, Director under Rule 26 of Central Excise Rules, 2002 are hereby dropped.
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