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TMI Blog1998 (11) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... chocolate in any form and not as claimed by the assessee under Heading 1905.11, which is for biscuits, waffles and wafers manufactured by it. The product itself consists essentially of wafers completely covered in chocolate. 3. It was contended on behalf of the applicant that on limitation as well as on merits there was strong case. On limitation, it was contended that by various documents the composition of the product has been disclosed to the department. The revised declaration, dated 5-6-1995 described the goods to be crisp wafer fingers covered with milk chocolate and the subsequent declarations repeated this description. This declaration also was accepted by the department, after the Superintendent had visited the factory verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent to his order. The applicant has in the classification list described the final products as wafers and not chocolate covered wafers. The applicant did not object to the description of the goods as chocolate in a market survey conducted by M/s. ORG Systems. The internal note indicated that the applicant wilfully did not declare to the department the exact proportion of the chocolate. On merits, he contends that the goods contain chocolate to the extent of 70% by weight and 80% by value. It is known as chocolate. Chapter Heading 19.05 refers to the goods containing chocolate and not as in the present case goods covered with chocolate. The Explanatory notes refer to waffles covered with chocolate and not wafers. By application of Rule 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept that the word "contain" should be so interpreted as to mean only "enclose", and that the word would not cover products on which any cocoa product is applied. The dictionary meaning of the word contain includes "comprise", "include". Items such as cakes, which are classifiable under this heading contain cocoa products, in various layers including sometime on the top. It is prima facie unreasonable to classify them separately depending upon which layer contains the cocoa.
8. Taking all these aspects into account, we waive deposit of duty and penalty demanded and stay their recovery.
9. Both sides ask for early hearing in view of the amount involved. We accept and set the appeal hearing date in January, 1999. X X X X Extracts X X X X X X X X Extracts X X X X
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