TMI Blog2014 (9) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6%. We have also seen the labels on the bottles of the MMNF which also indicate the brix content as 5.7%. Under these Rules too, the appellant's product does not meet the criteria of fruit juice base drink since it does not have the required brix content. The lemon juice concentrate in the MMNF is only 1%. Which falls below the limit of 5% specified in PFA Rules. The MMNF thus squarely falls under CTH 22021020. duty is payable accordingly with interest. However imposition of penalty is set aside. - Decided partly in favour of assessee. - Appeal No. E/1465/2011 - Mum - A/650/2014-WZB/C-II(EB) - Dated:- 27-8-2014 - Ashok Jindal and P S Pruthi, JJ. For the Appellant : Shri V.S. Nankani, J H Motwani, Advocate and Nehal Parekh, Adv For the Respondent: Shri S.G. Dewalwar, Addl.Commissioner (AR) JUDGEMENT Per: P.S. Pruthi: M/s. Hindustan Coca-Cola Beverages Pvt. Ltd. (appellants) are in appeal before us against the order-in-original No. 30/BR/Th-I/2011 dt. 29.06.2011 passed by the Commissioner of Central Excise Thane-I confirming demand of Central Excise duty amounting to ₹ 60,87,624/-, appropriate cess Cess and Higher Secondary Education Cess, on clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l waters and aerated waters, containing added sugar or other sweetening matter or flavoured...... . The MMNF is neither mineral water nor aerated water. It is also not just flavoured but has a percentage of lemon juice. They further contended that MMNF contains not less than 5% lemon juice and it therefore meets requirements of the Prevention of Food Adulteration Rules, 1955 (under the Prevention of Food Adulteration Act, 1954) which at Appendix-B Entry No. A.16.10 state that: A.16.10- Thermally processed fruit beverages/fruit drink/read to serve fruit beverages (canned, bottled, flexible pack and/or aseptically packed) means an unfermented but fermentable product which is prepared from juice or Pulp/Puree or concentrated juice or pulp of sound mature fruit, by blending with nutritive sweeteners and water or milk and processed by heat, in an appropriate manner, before or after being sealed in a container, so as to prevent spoilage. 2. The product may contain food additives permitted in Appendix C. The product shall conform to the microbiological requirement given in Appendix D. The product shall meet the following requirements. (i) Total Soluble Solid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021010. He referred to the decision of Tribunal in the case of Parle Agro Pvt. Ltd. (supra) classifying Appy Fizz under Chapter Heading 22029020 which decision was maintained by Supreme Court in 2010 (254) ELT A13 (S.C.). It was strongly contended by the Ld. Counsel that in different plants of the appellants at Guntur, Dasna and in the State of Karnataka, MMNF is classified under CTH 22029020 as a fruit juice based drink and department cannot take different stands in different territories. 6.2 It was submitted that heading 22029020 being a more specific entry will prevail in accordance with Rule 3(a) of the General Rules for Interpretation. Our attention was drawn to Board Circular No. 309/25/97-CX dt. 31.3.1997 which states that fruit juice or fruit juice concentrate based drinks will appropriately be covered under Chapter Heading 2202.91 or 2202.99. Further, the MMNF manufactured from imported frozen lemon juice imported under bill of entry dt. 26.6.2010 which shows import of frozen lemon preparation for juice drink under tariff heading 20089912. Lastly, it was argued by the Ld. Counsel that Wikipedia is not an authentic source of information as held by Supreme Court in CC V/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade or under sub-heading 22029020 as Fruit Pulp or fruit juice based drinks. The sub-headings are reproduced below for convenience: Tariff Item Description of goods 2202 Water, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of Heading 2009 2202 10 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured 2202 10 10 ---Aerated waters . 2202 10 20 ---Lemonade 2202 10 90 ---Other . 2202 90 ---Other . 2202 90 10 ---Soya milk drinks, whether or not sweetened or flavoured 2202 90 20 ---Fruit pulp or fruit juice based drinks .. 2202 90 30 ---Bev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pedia and Encyclopaedia may not be authentic. With due respect to the judgement, we note that the issue in that case was to distinguish between the highly technical electronic goods i.e. laptop and desktop computer. A passing reference was made in the judgement that although the laptop and desktop computers are defined differently in Wikipedia, the same may not be authentic. However, in the same vein the Hon'ble Supreme Court continued to state that ..... However, it is not disputed that a laptop and a desktop is differently known in commercial parlance . Thus the Supreme Court went by the test of commercial parlance. In the present case, if we apply the test of commercial or common parlance, we find that the website of the appellant itself describe the MMNF as a drink which is close to house made Nimbu Pani and further relates that minute Maid Nimbu Fresh offers 'Ghar Ki Yaadon Ka Ras' (memories of home-made lemonade) in every sip , Therefore, the Supreme Court judgement, in fact, does not favour the Appellants case. It would be not out of place to mention that even Encyclopaedia Britannica, which may be considered as an authentic Encyclopaedia, describes lemonade as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of handling and transportation as mentioned above. The quantity of this lemon juice concentrate added in Minute Maid Nimbu Fresh is 1%. Lemon Juice Concentrate on reconstitution with water is equal to 5.7% of single strength (6 degree brix) lemon juice. Firstly, we note that the product described in the Prevention of Food Adulteration Rules 1955, is Lime and not lemon. The two words are described differently in Chamber's 21st Century Dictionary. However, even ignoring this point we note that the requirement of Prevention of Food Adulteration Rules 1955 is that the total soluble solid should not be less than 10%. Whereas the appellants technical note describes above states that the solid content of the juice is measure in terms of brix and the lemon juice brix is at 6 degree i.e. 6%. We have also seen the labels on the bottles of the MMNF which also indicate the brix content as 5.7%. Under these Rules too, the appellant's product does not meet the criteria of fruit juice base drink since it does not have the required brix content. The lemon juice concentrate in the MMNF is only 1%. Which falls below the limit of 5% specified in PFA Rules. The MMNF thus squarely falls ..... X X X X Extracts X X X X X X X X Extracts X X X X
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