TMI Blog1994 (4) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of the product in question is as follows :- (a) Ingredients - Coffee beans and roasted chicory cubes. (b) Process of Manufacture (i) cleaning of coffee beans; (ii) blending of coffee beans; (iii) roasting of coffee beans; (iv) grinding of coffee beans; (v) blending of ground coffee beans with roasted chicory cubes in desired proportion; (vi) extraction of the liquor from the coffee chicory mixture using water; (vii) concentration of the liquor; (viii) spray drying the concentrated liquor into powder form - the resultant product is commercially known as instant coffee chicory blend ; and (ix) packing the instant coffee chicory blend either in tins, bottles or flexi packs. 4. Shri V. Sridharan learned Counsel appearing for the appellants in both the cases submitted that sub-heading 2101.10 is not applicable to the goods in question since the product is an extract of coffee chicory mixture and not an extract of coffee alone. According to him the goods are classifiable under sub-heading 0901.20 or alternatively either under sub-heading 2101.30 or under Heading 21.07 but not under Heading 2101.10. 5. The relevant tariff entries read as follows :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ium, the Netherlands, Germany and India. Chicory is also used in some areas to flavour or adulterate coffee as it was stated in the above Chemical Technology and New Encyclopaedia Britannica. There is separate ISI specification for coffee powder and soluble coffee chicory powder and Indian Standard Glossary of Terms for coffee and its products (IS 7236-1974) confines to coffee and its products but not chicory. It was clearly held in the case of Brooke Bond India Ltd. v. Union of India and Others reported in 1984 (15) E.L.T. 32 (AP) that the mixture coffee and chicory cannot be called by individual name of either coffee or chicory but coffee chicory mixture is a distinct commercial commodity differing from the two ingredients constituting the mixture and is also known commercially as French coffee. Referring to sub-heading 2101.10, he said that it must be an extract of pure coffee or preparations with a basis of such extracts, essences or concentrates or with basis of such pure coffee and none of the three portions of sub-heading 2101.10 applies to the item in question. He pointed out that the Chapter Notes to Chapter 21 in HSN is not similar to the excise tariff since Note 2 therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the coffee tree to be classifiable under Chapter 9. Sub-heading 0901.20 refers to coffee substitutes containing coffee in any proportion. But the item in question is neither a coffee substitute nor it contains the coffee as per definition in Chapter Heading the coffee content has undergone any other process it does not come under Heading 09.01 and it is evident in the instant case that something more complex was done. Coffee chicory mixture is not a substitute for coffee. Substitute means it must be in place of or instead of original and not something added to the original. Coffee adulterated with chicory is not a substitute for coffee and the item is not marketed as coffee substitute, but known as coffee chicory mixture. According to HSN Heading 21.01 covers roasted chicory and other roasted coffee substitutes and extracts essences and concentrates thereof, the products which are intended to be replaced or to be added to coffee. The Wealth of India (A Dictionary of Indian Raw Materials and Indian Products) also recognises two types of coffee powder viz. pure coffee prepared from coffee beans and French Coffee containing chicory. She said that it is not her case that the two pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough it was with reference to old Tariff, still ratio is applicable as it was held in the case of Quality Steels Products Pvt. Ltd. v. Collector of Central Excise, reported in 1993 (65) E.L.T. 513 that mere change in Tariff or incorporating number of headings and sub-headings will not take away the nature of the goods unless name and description of the very goods is so specified under the relevant Tariff Entry for the purpose of classification. He contended that since Chapter 21 of the Central Excise Tariff Act deviates from HSN, the HSN is not relevant as it was observed in the case of Randip Shipping Transport Co. (P) Ltd. v. Collector of Customs, reported in 1989 (41) E.L.T. 392 that whenever there is any divergence between the two it would be reasonable to infer that the divergence has been intended and to that extent the Brussels Nomenclature will have no application. He also referred to the decisions of the Tribunal in the case of Chetna Polycoats (P) Ltd. v. Collector of Central Excise, reported in 1988 (37) E.L.T. 253 (Tri.) and Amco Batteries v. Collector of C. Excise, reported in 1993 (63) E.L.T. 534, in support of his contention that clear language in the tariff and le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for mixing with coffee rather than using as such in India. The French found that a mixture of chicory and coffee was a delightful combination and popularised the blend throughout Europe and the mixture came to be known as `French coffee . Even if we consider that chicory is a coffee substitute but at any rate the coffee chicory mixture cannot be trested as coffee substitute. When once we are of the view that coffee chicory mixture is not a coffee substitute, the Heading 09.01 is not applicable and accordingly classifying the item under sub-heading 0901.20 is ruled out. We find that the term coffee in Item No. 2 of the old tariff was explained similar to definition given in Chapter 9 of the new tariff with an explanation instant coffee includes instant coffee containing any ingredient in addition to the coffee. But it was held in the case of Brooke Bond India Ltd. (supra) that coffee chicory mixture was different from coffee not falling under Tariff Item 2, but it was liable to duty under Tariff Item 68 as residuary item. Next question arises whether it is classifiable under sub-heading 2101.10 as per the Department or under sub-heading 2101.30 or alternatively under 21.07 as c ..... 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