TMI Blog1998 (10) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of Rule 9(2) read with Section 11A of Central Excises and Salt Act, 1944. He has also imposed penalty of Rs. 3,500/- under Rule 173Q of C.E. Rules, 1944. The Additional Collector has noted that the item manufactured by the assessee is an edible preparation not elsewhere specified or included falling under Chapter Heading 21.07 and put-up in unit containers ordinarily intended for sale attracting a rate of duty at 15% ad valorem under sub-heading 2107.91. In this regard, he has referred to Note 5(b) of Chapter 21 which reads as Heading No. 21.07, inter alia includes `preparations for use, either directly or after processing (such as cooking; dissolving or boiling in water, milk or other liquids), for human consumption. He has further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efers to items put-up in unit containers and ordinarily intended for sale. They contend that the item in question does not fall into this type of edible preparations referred to in the tariff headings. 3. We have heard both sides in the matter. 4. Learned Advocate Shri V.J. Sankaram for appellants strongly pleaded for classification of the item under Chapter Heading 19.02 as vermicelli whether or not prepared is specifically included in the said heading. He pointed out `specific heading excluded a generic heading. Chapter sub-heading 2107.90 is a generic item and does not fall under the said heading. He also referred to HSN notes under Chapter 1902 which refers to items Pasta, whether or not cooked or stuffed (with meat or other subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainers and ordinarily intended for sale. The Heading 19.02 also refers to `Pasta whether or not cooked or stuffed (with meat or other substance) or otherwise prepared, such as Spaghetti, Macaroni, Vermicelli, Noodles, whether or not prepared. The Additional Collector has proceeded to consider only Chapter Heading 21.07 which refers to `edible preparations not elsewhere specified or included and he has not dealt with specific Heading 19.02 which covers items which are not specific in nature but he has gone to classify under residuary entry under Heading 21.07 which refers to edible preparations, not elsewhere specified or included. In the present case, vermicelli prepared whether or not is specifically included under Chapter 1902 and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires to be set aside. 7. In the case of CCE v. Frozen Foods Pvt. Ltd. reported in 1992 (59) E.L.T. 279 (T), the item involved was Surge which was held to be appropriable for classification under sub-heading 2107.91 and even in this case, the Chapter Note 5(a) was pressed into for classification under sub-heading 21.07 as Note 5(a) refers to protein concentrates and textured protein substances and it was found that the item is Surje consisting of whey proteins and casein peptides (37%), carrier and sweetening agents (62%) and flavoring and vitamins (1%) and having satisfied that Section 5(a) under Chapter Heading 21.07, the Tribunal upheld its classification under this heading. This citation referred to by learned SDR is clearly di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will only fall under Chapter 21 and therefore ratio of this judgment is not applicable to the present case. Hence learned SDR s reliance on these citations are not applicable to the facts of the present case. 9. We further notice that Chapter Heading 19.02 clearly includes vermicelli under this heading and therefore a bona fide belief did arise in the minds of appellants for not filing classification or declaration as during the said period. The item in question was said to be eligible for exemption under Notification No. 17/70-C.E., dated 1-3-1970. Therefore, their plea that there is no suppression in the matter calling for invocation of larger period is required to be accepted. In that view of the matter, the appeal succeeds both on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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