TMI Blog2011 (3) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... item no. 2106 9060 of the eight digit Central Excise Tariff which is not eligible for benefit of exemption at sr. no. 30A of notification no. 3/2006-CE dated 1.3.2006 as amended by notification no. 3/2007 dated 1.3.2007 and for the benefit of exemption at sr. no. 22 of the notification no. 3/2006 dated 1.3.2006. Therefore, the appellants are liable to pay central excise duty on their product along with interest and penalties. 2. The facts of the case are that the appellants are engaged in the manufacture of product predominantly consisting of mixing dry fruit. The product is marketed in the brand name of Everest Milk Masala . The ingredients of the product are specified as under:- Nuts Percentage Other Spices Percentage Almonds 42.36% Cardamom 9.00% Cashewnuts 24.05% Mace 6.36% Pista 16.95% Saffron 0.064% Nut Meg 0.064% 3. The appellants classified the said product under chapter heading 21.06 as food mixing and sought exemption for payment of duty under sr.no. 30A of notification 3/07 CE dated 1.3.2007. A show cause notice was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring extracts for manufacture of beverages (chapter 9 or heading 21.06) D. Firstly, the exclusion note does not cover mixture of nuts. Secondly, it applies to the mixtures of plants, parts of plants, seeds or fruits not consumed as such. The impugned order accepts the claim of the Appellants that the subject product is capable of being consumed as it is. In view thereof, the exclusion note does not exclude the above product from Chapter 20.08. E. It is settled position in law that once the goods covered by a specific entry, they are to be classified under that entry. In the present case, the product is specifically covered under Chapter Heading 20.08 by description and is correctly classifiable under Chapter Heading 20.08. F. In any event, the above product is not classifiable under Chapter 21.06. The explanatory note to HSN specifically provides that the goods which are not covered by any other heading of the nomenclature are covered under heading 21.06. Heading 21.06 is residuary heading. G. It is settled position in law that the specific entry takes precedence over the residuary entry. H. Reliance on the Supplementary Note 5(b) to Chapter 21 of the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f decisions of the Supreme Court and this Court that it is not permissible to take into consideration the trade meaning or commercial nomenclature when the definition provided in the statute is extremely clear and does not suffer from any ambiguity. In case where the application of commercial meaning or trade nomenclature runs counter to the statutory context in which the word is used in the Tariff Item, then the trade meaning or commercial nomenclature should be ignored (ii) Collector of C.Ex. Madras V/s. Sundaram Fastners Ltd., Madras reported in 1985 (22) ELT 923, the Hon ble Appellate Tribunal inter alia, held that common parlance test principles means that the goods for classification should be covered by, and not that they should be known in, the wordings of tariff description. P. Assuming without admitting that the product is covered by Chapter Heading 21.06, it is submitted that the product is to be treated as food mix. The Heading covers Food Preparation . It is admitted in the impugned order that the product can be consumed as such. What can be consumed as such is to be regarded as food. In view thereof, the product is exempt under Serial No. 30A of Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to supplementary chapter note 5B to Chapter 21, the product is rightly classified under Chapter heading 21.06. 8. He also submitted that the opinion of Prof. Lele was obtained during adjudication and same was relied upon by the adjudicating authority which is an independent opinion, so cross examination of the same is not required. As it has been observed that product is food flavouring material, hence the adjudicating authority has passed the impugned order within the purview of law. Hence same is to be sustained. He further submitted that w.e.f. 28.2.2005, the Central Excise Tariff has been aligned with the 8 digit Customs Tariff. However, the scope of Chapter 21 has not been changed. Due to alignment, goods covered by earlier heading 21.07 of the Central Excise Tariff are now covered under heading 21.06 of the Tariff ibid. The earlier Chapter heading Note 5(b) to Chapter 21 (before alignment) is also existing in the present chapter 21 in the form Sub heading Note 5(b). Therefore, the aforesaid decision of the Hon ble Tribunal, which was based on Chapter note 5(b) is applicable under post aligned Central Excise Tariff. Further at the time alignment it was clarified by the CB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial understanding was resorted to. However, presently it is seen that Chapter 1 to 21 of the CETA are fully aligned with explanatory notes up to 4 digits and same meaning given in explanatory notes was therefore be given to note 5B. The Tribunal in the case of DS Foods Ltd. (supra) has already decided that the preparations falling under Chapter 20 and 21 are both edible in nature and when the products are actually classifiable under Chapter 20, there is no question of going to the heading in Chapter 21, which is residuary in nature. In the case of Kulkarni Black Deckers Ltd. (supra) the Hon ble Bombay High Court has held that it is not permissible to take into consideration the trade meaning or commercial nomenclature when the definition provided in the statute is extremely clear and does not suffer any ambiguity. In case where the application of commercial meaning or trade nomenclature runs counter to the statutory context in which the word is used in the tariff item then the trade meaning or commercial nomenclature should be ignored. 9.4 As per Rule 3(a) of the General Rules for the Interpretation of Central Excise Tariff the heading which provides the most specific d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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