TMI Blog2011 (2) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... red as different from the milk powder, the same would not be covered by Heading No. 0401.13 of the Tariff - Appeal is dismissed - E/979/2005-EX - 239/2011-EX(PB) - Dated:- 25-2-2011 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri Ashok Sagar, Advocate, for the Appellant. Shri Nitin Anand , SDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The facts giving rise to this appeal are, in brief, as under : 1.1 The appellant manufacture Milkana Dairy Whitener and Milkana Dairy Powder light and sweet falling under Chapter 4 of the Central Excise Tariff. The period of dispute is from 2-6-98 to 17-7-98. During this period, the appellants classified these products under sub-headin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld the classification of the goods under sub-heading no. 0401.13 of the tariff and also upheld the duty demand but set aside the order of penalty on the ground that there was no mala fide on the part of the appellant and in this case, the appellants filed classification list claiming classification of the goods, in question, under heading no. 0401.19 of the tariff and have cleared the goods on that basis and that this is purely a case of classification dispute. 1.4 Against this order of the Commissioner (Appeals), the present appeal has been filed challenging the Commissioner (Appeals) s order upholding the classification of the goods under sub-heading no. 0401.13 of the Tariff and also the duty demand. 2. Heard both sides. 3. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est has to be applied and that when tested on the basis of understanding in common parlance, the goods, in question, cannot be called skimmed milk power/partially skimmed milk powder and, therefore, the same would be correctly classifiable under heading no. 0401.19 of the tariff. 4. Shri Nitin Anand, ld. Departmental Representative, defended the impugned order reiterating the Commissioner (Appeals) s findings and emphasised that the issue involved in this case is clearly covered by the ratio of the Tribunal s judgement in the case of Nestle India Ltd. v. CCE (supra) wherein the Tribunal has held that Nestle Every-day Whitener, T mate Dairy Whitener and Dairy Powder 5 P are classifiable under heading no. 0401.13 of the Tariff. He also plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han powder specially prepared for feeding infant , covered by heading No. 0401.13. In support of this contention, the appellant rely upon the affidavits of several consumers, retailers and a scientist of National Dairy Institute. 7. Heading 04.01 of the Tariff and its various sub-headings are reproduced below :- Heading No. Sub-heading No. Description of goods Rate of duty (1) (2) (3) (4) 04.01 Milk and Cream, concentrated or containing added sugar or other sweetening matter. - In or in relation to the manufacture of which any process is ordinarily carried on with the aid of power : 0401.11 Flavoured milk, whether sweet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to manufacture of which any process is ordinarily carried out with the aid of power. Sub-heading No. 0404.90 covers those products of this heading in or in relation to which no process is ordinarily carried on with the aid of powder. Thus from the perusal of this heading, it is clear that so far as milk powder is concerned, there are only two sub-heading nos. 0401.12 and 0401.13. Sub-heading 0401.12 covers only those skimmed milk powders which are specially prepared for feeding infants and other Heading No. 0401.13 covers all other types of milk powders and hence this sub-heading would cover whole milk powder, skimmed milk powder or partially skimmed milk powder, other than those which are intended for feeding infants. Since Heading No ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
