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2023 (11) TMI 1027 - CESTAT BANGALOREClassification of manufactured goods - Badam Milk Drink Ready to Drink - to be classified under 0401 11 as flavoured milk or under CETH 2202 9030? - HELD THAT:- It is found that with the introduction of 8-digit Classification Code, there is a specific entry for beverages containing milk, which was not there in the earlier Central Excise Tariff. Further Tarriff item 0401.11 “flavoured milk whether sweetened or not put up in unit containers ordinarily is not anymore present under Chapter 04 after the introduction of 8 digit classification code. With the introduction of the 8 digit, since there is a specific classification for the impugned item under Chapter sub-heading 2202 9030 the same has to be classified under this specific heading in view of Rule 3(a) of the General Rules for the Interpretation of Central Excise Tariff, which says that a specific heading should be preferred for a generic heading. In this case, we find that the impugned item i.e. Badam Milk Drink – Ready to Drink is containing flavourings namely badam powder, cardamom, saffron, Maltodextrin and garnished with badam flakes. Further it is found that this item has also undergone the process of homogenization and pasteurization and UHT treatment to increase the shelf life of the product. Such items, which are having a longer shelf life because of the above processes are not akin to normal pasteurized, homogenized and toned milk. It is found that the Board, while issuing Section 11C Notification No. 17/2008-CE (NT) has classified flavoured milk of animal origin under chapter sub-heading 2202 9030. We find that the Notification is issued after the introduction of 8-digit classification code and after the full alignment of Central Excise Tariff with HSN. This buttresses the contention of the Department that the impugned item is classifiable under the chapter sub-heading 2202 9030. The Department contended that the product/item is classifiable under 2202 9030 and in support they cited the case-law of ERCMPU (MILMA) VERSUS COMMISSIONER OF CENTRAL EXCISE, COCHIN [2013 (5) TMI 1066 - CESTAT BANGALORE]. The case-law of NESTLE INDIA LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE (LTU) , DELHI [2017 (3) TMI 1636 - CESTAT NEW DELHI] cited by the appellant is distinguishable on facts as the issue involved is classification between Chapter heading 0404 and 1904 of mix and not beverage and the case is based on the Central Excise Tariff that existed before 2005 i.e. before alignment of the Central Excise Tariff with the HSN. Thus, following the ratio of the decision in Ernakulam Regional Co-operative Milk Producers Union Ltd. of this Tribunal, there are no reason to interfere with the impugned order - the appeal filed by the appellant is unsustainable and is rejected.
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