TMI Blog2010 (10) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... J. REPRESENTED BY : Shri H.B. Negi, SDR, for the Appellant. Shri Prakash Shah, Advocate, for the Respondent. [Order per : P.G. Chacko, Member (J)]. Miscellaneous Application No. E/MA(Ors.)-766/2008 is dismissed as not pressed. Another Miscellaneous Application No. E/MA(Ors.)-1784/2010, filed by the respondent of late, is also found on record. Though it does not figure in today s cause list, with the consent of both sides, we take up this application also for consideration. 2. This application filed by the respondent seeks to bring on record two documents as additional evidence against certain grounds raised in the Revenue s appeal. One of these documents is a copy of partnership deed dated 1-1-2000 between Mr. Jay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related issue and, therefore, the present application is liable to be allowed under Rule 23 of the CESTAT (Procedure) Rules. 3. Learned SDR has opposed this prayer. He submits that both the documents were in existence even when the show-cause notice was issued, but the assessee never chose to refer to or rely on any of them. The respondent never wanted to rely on these documents at any stage before. The present application is highly belated and is liable to be rejected, according to the learned SDR. 4. After giving careful consideration to the submissions, we have found a valid reason to allow this application. Two show-cause notices were issued to the respondent, One for re-classification of the subject-goods and the other for denying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. The documents, which are sought to be brought on record by the respondent, are crucial for a decision on this question of fact. Any such a decision will have direct bearing on the next question whether the respondent was entitled to the benefit of Notification No. 8/2001 in respect of their branded product during the material period. Where a manufacturer claims the benefit of an exemption Notification, it is for him to establish that he is entitled to the benefit. If any exception is carved out of the exemption, it is for the manufacturer to show that he is not within the scope of the exception. The respondent is liable to establish, in the present case, that they are not affected by anything contained in para 4 of the Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee s claim for classification under SH 2108.99. Learned SDR has also adverted to certain HSN Explanatory Notes. On the other hand, learned counsel for the respondent has argued in support of the findings recorded by the Commissioner (Appeals). He has also shown us samples of the product. Learned SDR has not raised any dispute about these samples and, therefore, we would like to examine the composition of the goods from the product label. The label describes the goods as Nutrition Supplement for Diet, Energy and Muscle Building . The label also conspicuously describes the product as NATURAL HEALTH SUPPLEMENT . It shows the following composition. Protein 35 gms Fat 2 gms Zinc 13 mg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Heading 21.08 as food supplement. We have not found any reason to interfere with this decision of the learned Commissioner (Appeals), nor is there any strong ground in the present appeal for interfering with his decision. The appellant has just contended that Heading 21.08 is a residuary entry covering goods not elsewhere specified or included whereas Heading 19.01 is a specific heading read with Explanatory Notes. The Explanatory Notes referred to by the appellant reads thus : Food preparation of flour, meal, starch or malt extract not containing cocoa or containing less than 40% by weight of cocoa calculated on a totally defatted basis. The product label indicates that it contains ingredients sourced from cocoa. Revenue has not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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