TaxTMI 
TaxTMI 
2014 (9) TMI 659
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....ing 2202 9020 as a lemon juice based drink and availing exemption under Notification No. 3/2006 C.E. dt. 01.03.2006, which notification grants total exemption to goods falling under this chapter heading. Department was of the view that the MMNF should have been classified under sub-heading 22021020 as Lemonade. It was contended by the appellant at the adjudication stage that the Central Excise Tariff is not fully aligned with the HSN Explanatory Notes, that the drinks based on fruit juice are specifically mentioned under heading 22029020, that the Tribunal in the case of CCE Bhopal Vs. Parle Agro Pvt. Ltd. reported in 2008 (226) ELT 194 (Tri.Del.) classified 'Appy Fizz' as fruit juice based drink under Tariff Item 22029020, that similar product manufactured by their competitors are also being classified under Tariff Item 22029020, and in their own factories at Ghaziabad (UP) and Guntur (AP) the jurisdictional authorities have accepted classification of fruit juice based drinks under 2202 9020. 3. They had submitted the manufacturing process of MMNF as Minute Maid Nimbu Fresh juice drink obtained by hot fill process in PET & RGB involves blending of simple syrup, beverage b....
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....red to the definition of lemonade as given in Wikipedia the free Web Encyclopaedia, as a mixture of juice, sugar and un-carbonated water which may or may not contain artificial flavours. He held that once a specific heading is provided for lemonade against chapter sub-Heading 220210, the same has to be preferred and that the language of the Central Excise Tariff Act has to be given precedence over the Prevention of Food Adulteration Act/Rules, 1955. Especially, when the process of manufacture and ingredients are aptly covered under the definition of lemonade. Accordingly he held the classification under Chapter Heading 22021020. 4. Heard both sides. 5. Apart from the written submissions, the Ld. Counsel Shri V.S. Nankani while referring to the description of the competing entries i.e. 22021020 and 22029020 vehemently argued that by application of General Explanatory Notes to the General Rules for the Interpretation of the First Schedule to the Tariff, Chapter entry 2202 1020 dealing with Lemonade, has three dashes viz before it and the same is the sub-classification of the entry 2201 10 which has one dash viz and the description against latter entry reads "Water, including minera....
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.... 1% lemon juice concentrate is equivalent 5.7% lemon juice" which appears on the labels of the bottle of MMNF. 7. Ld. A.R. in his arguments stresses on the understanding of the term lemonade in common parlance and he drew analogy to homemade Nimbu Pani. He placed on record the advertisement on the website of the appellants which while describing MMNF reads as: Just like home made lemonade A lemon drink with no added preservative or colour, Minute Maid Nimbu Fresh Offers a refreshing drinking experience as close to homemaid Nimbu Pani as possible in a packaged format. Nostalgia in a bottle Minute Maid Nimbu Fresh offers 'Ghar Ki Yaadoon Ka Ras' (memories of the home-maid lemonade) in every sip. He referred to the product Dukes Lemonade of the competitor Pepsi and contended that the same is used as a trade name as revealed in Trademark Authority. Website and by no means the same can be termed as a popular generic name lemonade to justify that only such drinks are covered under the category of 'Lemonade'. 7.1 The Ld. A.R. in his written submissions referred to the reference to 'lemonade' in Encyclopaedia Britannica. He also distinguished between the word &....
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....ice, under CTH 220110 does not arise. We cannot appreciate this argument and do not agree that MMNF cannot be called a flavoured drink. The word flavour in normal usage of the word will naturally include both natural and synthetic flavors. Therefore, addition of lemon juice to the water without aeration can make the product to fall under 220210. The reference that only products such as Dukes lemonade, a product made by a competitor, will fall under 22021020, is not acceptable because as noted above, the drinks that fall under 220210 may be aerated or not and may be flavoured or not. Further, the "Duke lemonade" has been shown to be a trade mark in the official web-site of concerned Trade Mark Authority. Therefore, it is not conclusively proved that just because Dukes lemonade contains no fruit and is still called a lemonade, it does not lead to the conclusion that the appellant's product cannot be called a lemonade. The reliance on judgement in the case of Parle Agro Pvt. Ltd. (supra), does not support the appellant's contention because in that case the product, that is Appy Fizz, contains a far more higher and significant percentage of apple juice i.e. 23% whereas in the c....
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....de gas, and are generally imported in well stoppered bottles". In the present case we have already noted that drinks under entry 22021020 may or may not be aerated. In any case lemonade is described to contain fruit juices. 10. The reliance on Board Circular is misplaced because therefore the issue was of fruit juice concentrate based drinks. Even the reference to import of frozen lemon juice by the appellant is not relevant here because the imported product is different. 11. The appellants forcefully relied on the Prevention of Food Adulteration Act/Rules 1955. We have gone through the Rules. As per entry No. A 16.10 of appendix B to the Prevention of Food Adulteration Rules 1955, the product ready to serve fruit drink should meet the following requirements:- (i) Total Soluble Solid (m/m) Not less than 10.0% (ii) Fruit juice content (m/m) (a) Lime read to serve beverage (b) All other beverage/drink Not less than 5.0% Not less than 10.0% 11.1 We find that the technical note dated 6.8.2014 submitted by the appellant as Annexure '4' to the written submission states that:- Fruit juices....