9911796707
TMI Blog2011 (2) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... . During this period, the appellants classified these products under sub-heading 0401.19 of the Central Excise tariff and cleared the same at nil rate of duty as the tariff rate of duty prescribed for the goods falling under sub-heading 0401.19 of the tariff is nil. The Department was of the view that the products being manufactured by the appellant are skimmed milk power and hence classifiable under sub-heading no. 0401.13 of the Tariff and liable for central excise duty at the rate of 8% adv. Accordingly, a show cause notice dated 22-12-98 was issued to the appellants for - (a) classification of the products, in question, under sub-heading no. 0401.13 of the Tariff; (b) recovery of central excise duty amounting to Rs. 29,45,699/- from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading no. 0401.13 of the Tariff and also the duty demand. 2. Heard both sides. 3. Shri Ashok Agarwal, Advocate, ld. Counsel for the appellant pleaded that the products, in question, -"Milkana Dairy Whitener" and "Milkana Dairy Powder Light & Sweet" are used with tea and coffee as dairy whitener and are different from the skimmed/partially skimmed milk powder covered under sub-heading no. 0401.13, that while the Dairy Whitener contains sugar, the skimmed/partially skimmed milk powder covered by heading no. 0401.13 does not contain any sugar, that commercially the dairy whiteners and skimmed/partially skimmed milk powder are considered two different products and in this regard, the evidence in form of affidavits of three housewi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Whitener and Dairy Powder 5 P are classifiable under heading no. 0401.13 of the Tariff. He also pleaded that Tribunal's judgement in the case of Nestle India Ltd. v. CCE (supra) is based on the judgement of the Hon'ble Supreme Court in the case of Union of India v. Food Specialities reported in 1998 (97) E.L.T. 402 (S.C.). He emphasised that sub-heading no. 0401.13 refers only to the milk powder without qualifying it with any adjective and, therefore, this term would cover within its compass all types of milk powder whole, skimmed and partially skimmed and that the goods, in question, are nothing but skimmed milk powder. 5. We have carefully considered the submissions from both the sides and perused the records. 6. The disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Flavoured milk, whether sweetened or not, put up in unit containers and ordinarily intended for sale. 0401.12 Skimmed milk powder, specially prepared for feeding infants. 0401.13 Milk powder, other than powder specially prepared for feeding infants, put up in unit containers and ordinarily intended for sale. 0401.14 Concentrated (condensed) milk, whether sweetened or not, put up in unit containers and ordinarily intended for sale. 0401.19 Other 0401.90 Other 7.1 From a plain reading of the above heading of the Central Excise Tariff, it is clear that this heading covers milk and cream whether concentrated or containing added sugar or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s other than those skimmed milk powder specially prepared for feeding infants and since the products, in question, are nothing but the skimmed milk powder, the same would be correctly classifiable under sub-heading no. 0401.13. We find that the same view had been taken by the Tribunal in the case of Nestle India Ltd. (supra) and this decision of the Tribunal is based on the judgment of the Hon'ble Supreme Court in the case of Food Specialities Ltd. (supra). 8. It has been pleaded that for deciding the classification of the goods in question, the commercial parlance test must be applied and since in common parlance, the goods, in question, are considered as different from the milk powder, the same would not be covered by Heading No. 04 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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