TMI Blog2012 (12) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... ale price These appeals raise serious issue of classification i.e. whether the goods in question is starch classifiable under Tariff Entry 1108 13 00 or vegetable waste classifiable under Tariff Entry 2308 00 00. - good prima facie case - pre-deposit waived - E/2819 and 2792/2011 - 613-614/2012-EX(BR)(PB) - Dated:- 4-4-2012 - Justice Ajit Bharihoke, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri B.L. Narsimhan, Advocate, for the Appellant. Shri Bharat Bhushan, DR, for the Respondent. [Order per : Justice Ajit Bharihoke, President]. M/s. Pepsico India Holdings Pvt. Ltd. and M/s. Max Builders have filed separate appeals challenging the impugned order of the Commissioner (Appeals) vide which he set aside the order-in-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings Pvt. Ltd. in the market is not covered under Entry No. 11081300. This was done after discussing the manufacturing process which results in this waste. 6. The department being aggrieved of the order-in-original filed an appeal and the Commissioner (Appeals) allowed the appeal and confirmed the demand of Rs. 1,07,134/- with interest and equal amount of penalty against M/s. Pepsico India Holdings Pvt. Ltd. and also imposed penalty of Rs. 25,000/- on M/s. Max Builders. 7. Shri B.L. Narsimhan, ld. Advocate appearing for the appellants have taken us through the order-in-original as also order-in-appeal as well as the relevant provisions of Central Excise Tariff Act of India 2008-2009 and submitted that although the potato contains starch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple u/r has developed the fungal growth so other test regarding starch content could not be carried out. If required fresh sample may be drawn again and forwarded to CRCL. Sealed remnant returned CRCL s report clearly indicated that the sample responded for starch. Further the moisture content is 40% by Wt., therefore, it cannot be reasonably assumed that rest of the quantity of sample was having starch as its contents as no other observation regarding other matter/or matters present in the sample was given by CRCL; That the adjudicating authority has traversed the scope of the show cause notice by deciding the classification under Tariff Item No. 23080000 as it was not the subject matter of the show cause notice. Moreover, Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olids are separated and obtained in a moist powdery form. Further, drying of this product is done by Respondent No. 2 and thereafter the end product is sold by Respondent No. 2. It is, therefore, apparent that the processes taken out by the Respondent No. 1 are the same which are undertaken internationally as is evident from the process of making potato starch down loaded from the website Wikipedia. As in the instant case the resultant starch is extracted from the left over parts/peels of potato, therefore, the starch so made may not be of a good quality and may be fit for use only in animal feed. Shri Prasenjit Prasad Sarma, Authorised Signatory of Respondent No. 1 in his statement dated 1-7-2008, inter alia, has revealed that the process ..... X X X X Extracts X X X X X X X X Extracts X X X X
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