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2020 (7) TMI 554 - AT - Central ExciseNestle Milky bar and Eclairs - Benefit of exemption under N/N. 6 /2002-CE dated 1.3.2002 as amended with notifications 3/2006 dated 1/3/2006 and 12/2012 dated 17/3/2012 - classification of goods - Whether the confectionery products cleared by the appellant under Chapter 1704.90 are 'white chocolate' or not? - extended periof of limitation - interest and penalties - HELD THAT:- Both the Revenue as well as the appellant do not dispute the classification of the impugned products under CETH 1704. The only difference in the argument is based on the presence or absence of ingredients like cocoa butter and hydrogenated vegetable oils. As per Tariff Entry 1704 refers to sugar confectionery (including white chocolate) not containing cocoa. Chapter 17 does not include sugar confectionery containing cocoa or chocolate (other than white chocolate) in any proportion and sweetened cocoa powder (heading 18.06). HSN Explanatory Notes to Heading 170490 other says that the heading covers most of the sugar preparations which are marketed in a solid or semi-solid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionery or candies - thus, white chocolate can be classified under Chapter 17 and white chocolate composes sugar, cocoa butter, milk powder and flavoring agents, but not containing more than mere traces of cocoa. Whether or not the impugned products merit classification as white chocolate in terms of the HSN Explanatory Notes? - HELD THAT:- Tribunal, Allahabad in the case of M/S MARKO FOODS & SHRI NAMAN MANDHYAN, PARTNER, M/S PAHLADRAI CONFECTIONARIES PVT. LTD. & SHRI MOHIT VAID DIRECTOR VERSUS COMMISSIONER OF CENTRAL EXCISE, KANPUR [2018 (9) TMI 14 - CESTAT ALLAHABAD] held that a similar product i.e., Parle 2-in-1 Eclairs” and “Kismi Toffee and Bar”, to be boiled sweets containing no cocoa butter and having 8% fat content, are not “white chocolate” under Tariff Item 1704 90 30 of Central Excise Tariff and held that the said goods are eligible to benefit of Notification Nos.6/2002-CE, 3/2006-C.E. and 12/2012-C.E. - the Department has not conclusively established that the appellant’s claim that the impugned products did not contain cocoa butter during the impugned period with any indisputable proof or test report. The impugned goods i.e. Nestle Milky bar and Nestle Milky bar Eclairs are not excluded for the purpose of exemption contained in the Notifications. Appeal allowed - decided in favor of appellant.
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