1998 (10) TMI 199 - AT - Central Excise

Summary

Issues:
Classification of partly skimmed milk powder with added sugar under Tariff sub-heading 0401.19 or 0401.13 for the period 1991-92.

Analysis:
The dispute in the present matter revolves around the classification of partly skimmed milk powder with added sugar under Tariff sub-heading 0401.19 or 0401.13 for the period 1991-92. The appellants argue for classification under Tariff sub-heading 0401.19, while the Revenue classifies it under Tariff 0401.13. The lower appellate authority had previously denied the appellants' classification, citing a previous adjudication order. However, the appellants contend that the said order has been set aside by the Tribunal in a previous judgment upheld by the Supreme Court. They argue that the impugned order should be set aside based on this ground alone.

Furthermore, the appellants argue that even though the description of Tariff sub-heading 0401.13 was amended in the 1991 Budget, it should not apply in this case due to the addition of sugar to the product. They point out that sub-headings 0401.11 and 0401.14 specifically mention "whether sweetened or not," which is absent in sub-heading 0401.13. Therefore, they assert that the product should fall under sub-heading 0401.19, as it did before the 1991 amendment. The appellants request that their appeal be allowed based on these grounds.

In contrast, the JDR contends that the authorities did not consider the changed description of Tariff sub-heading 0401.13 post the 1991 Budget amendment. He argues that the expression "milk powder" now includes partial skimmed milk powder, as per Chapter Note 1 of Chapter 4. Therefore, he asserts that sub-heading 0401.13 should apply to the product in question for the period after the 1991 amendment. The JDR also states that the argument regarding "whether sweetened or not" was not raised before the lower authorities and should not be entertained at this stage.

Upon careful consideration, the Tribunal finds that the classification of the product under Tariff sub-heading 0401.19 is confirmed for the period before the 1991 amendment. However, for the period post the amendment, the matter needs re-examination in light of the new submissions. Therefore, the Tribunal sets aside the impugned order and remands the case to the adjudicating authority for further consideration in the context of the post-amendment period.

In conclusion, the appeal is disposed of with the above directions, emphasizing the need for a re-examination of the classification for the period subsequent to the 1991 amendment under Tariff sub-heading 0401.13.