TMI Blog2012 (3) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... he CETA and will also be eligible for the exemption under notification No. 1/2011 – CE dated 01/03/2011 as it satisfies the description “flavoured milk of animal origin” mentioned in the said notification - Held that:- The products “Yum Creamy” and “Yum Chusky” shall be classifiable under headings 04039090 and 22029030 respectively of the Central Excise Tariff Act, 1985; - The product “Yum Chusky” will be eligible for exemption under the Notification No. 01/2011 – CE dated 01/03/2011, subject to the applicant fulfilling the conditions prescribed in the said Notification. - AAR/44/CE/02/2012. - - - Dated:- 23-3-2012 - Mr. Justice P.K.Balasubramanyan, Mr. Y.G. Parande, JJ. Present for applicant : Sh. V. Lakshmi Kumaran, Advocate Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri. Sumit Kumar, A.R., for the Commissioner. 5. The applicant states that they have been engaged in trading of dairy products such as flavoured yogurts, packaged dahi and chocolate and vanilla flavoured smoothies and are now entering into manufacturing. For this purpose they have set up a manufacturing unit situated in Phase II, Food Park, Industrial Estate, RAI, Sonepat, Haryana in which they propose to manufacture a fermented milk product namely Yum Creamy and non-fermented milk based beverage namely Yum Chusky . The details of the composition of these products and the manufacturing process are as follows: Yum Creamy : This product has the following composition: (a) Whole cow milk 83.04% (b) Sugar 13.00% (c) Strawberry fla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the National Dairy Research Institute after conducting extensive tests and trials. The Institute s report has been furnished with their application. 6. The applicant has expressed the view that the product Yum Creamy will be classifiable under heading 04039090 of CETA and the product Yum Chusky would get classified under heading 22029030 of the CETA. Further, the latter product will also be eligible for the exemption under notification No. 1/2011 CE dated 01/03/2011 as it satisfies the description flavoured milk of animal origin mentioned in the said notification. 7. Yum Creamy is a product made by fermentation of milk and contains, apart from cow s milk, sugar, flavour, vitamins, wheat flour and rice flour. Heading 0403 of CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paste or solid (including frozen) form and may be concentrated or preserved. The note also states that apart from the additives mentioned in the General Explanatory Notes to this Chapter, the products of this heading may also contain added sugar or other sweetening matter, flavourings, fruit (including pulp and jams), nuts or cocoa. 9. It is, therefore, clear that heading 0403 permits addition of certain other ingredients which could be either stabilizers or sweeteners or flavoring agents. Therefore, dairy products classifiable under heading 0403 of CETA continue to remain classifiable under this heading even if they contain any of the aforementioned additives. Yum Creamy is made by mixing sugar, flavour, vitamins, wheat and rice flou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentions the description as flavoured milk of animal origin . The product Yum Chusky is squarely covered by this entry of the notification. It was also stated during the hearing that the applicant does not intend to avail of CENVAT credit in relation to this item. It would, therefore, be eligible for exemption provided under said notification. 13. In his comments on the application, the Commissioner of Central Excise, Rohtak has agreed with the proposed classification of both the products as well as the eligibility of Yum Chusky for the exemption under Notification No. 1/2011 CE dated 01.03.2011, subject to the applicant fulfilling the relevant prescribed conditions in the said notification, while observing that the classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the provisions of Section 23E (2) of the Central Excise Act, 1944, a Ruling of this Authority is binding only as long as there is no change in law or facts on the basis of which it is pronounced. The relevant facts have been clearly stated by the applicant in its application. It is always open to the department at any time, to verify whether the clearances, made by the applicant in terms of the ruling given by this Authority, conform to the facts stated by the applicant in the application. 16. We accordingly rule as follows:- 1. The products Yum Creamy and Yum Chusky shall be classifiable under headings 04039090 and 22029030 respectively of the Central Excise Tariff Act, 1985; and 2. The product Yum Chusky will be eligible for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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