TMI Blog2015 (8) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... and was replaced by notification no. 03/06CE dated 1/3/2006 and serial no. 16 of this notification also provided concessional rate of duty of 8% adv. for "sugar confectionary (excluding white chocolate) not containing the cocoa falling under sub-heading 170490" when this notification had been issued on 1/3/2006, the new Central Excise Tariff had already come into existence w.e.f. 28/2/2005 and in this new Tariff, sub-heading 170490 covered bubble gum. In view of this, the department's contention that the sub-heading 170490 mentioned in serial no. 247 of the notification no. 06/02CE must be read with the old Central Excise Tariff as it existed during period prior to 28/2/2005 is not acceptable. It is seen that it is only by notification no. 29/06CE dated 4/5/2006 that serial no. 16 of the notification no. 03/06CE was amended and the entry against serial not. 16 in this notification was replaced by "sugar confectionary (excluding white chocolate and bubble gums" and thus by the amendment notification no. 29/06CE dated 4/5/2006, the bubble gum was excluded from the purview of the exemption. Benefit of this exemption notification cannot be denied to bubble gum. In this regard, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is other than the gums whether or not sugar coated including chewing gum, bubble gums and like . Since exemption notification no. 6/02CE (serial no. 247) provided concessional rate of duty only for the goods of sub-heading 1704.90, and bubble gum was not covered under sub-heading 1704.90, the bubble gum was not covered for exemption under notification no. 6/02CE (serial no. 247), However, w.e.f. 28/2/2005, the old six digit tariff was replaced by the HSN based 8 digit tariff. In the 8 digit tariff also, while the heading 17.04 covered the same goods as those covered by heading 17.04 of the old six digit tariff, i.e., sugar confectionary (including white chocolate) not containing cocoa , sub heading 17041000 covered chewing gum whether or not sugar coated and thus, this sub-heading did not cover bubble gum. The sub-heading 170490 covered other sugar confectionary (including white chocolate) not containing cocoa . Thus, in the new 8 digit Central Excise Tariff which came into force w.e.f. 28/2/2005, the bubble gum would be covered by the sub-heading 170490. But during period w.e.f. 28/2/2005, the notification no. 6/02CE (serial no. 247) continued to cover the sugar confectiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ad-valorem for sugar confectionary (excluding white chocolate) not containing cocoa and falling under sub-heading 170490; that during the period w.e.f. 28/2/2005, the old six digit, Central Excise Tariff had been replaced by the new 8 digit HSN based Central Excise Tariff and sub-heading 170490 covered bubble gum; that while during period prior to 28/2/005, the sub-heading 170490 of the Central Excise Tariff covered sugar confectionary other than chewing gum bubble gum and the like whether sugar coated or not and thus, bubble gum was excluded from the sub-heading 170490, this was not so in the heading 170490 of the new Central Excise Tariff w.e.f. 28/2/2005 as in the new Central Excise Tariff while heading 170410 covered only chewing gum whether or not sugar coated the other sub-heading 170490 covered other sugar confectionary which would include bubble gum also, that the word chewing gum does not include bubble gum and chewing gum and bubble gum are two commodities and in this regard, he relies upon the judgment of the Tribunal in the case of Joyco India Private Ltd. Vs. CCE Chandigarh reported in 2002 (143) ELT 593 (Tri.-Del); that the same view has been taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02CE(serial no. 247). Serial no. 247 of the notification no. 06/02CE covered sugar confectionery (excluding white chocolate) not containing cocoa falling under sub-heading 170490. There is no dispute that bubble gum is sugar confectionary (excluding white chocolate) not containing cocoa . However, the serial no. 247 of the notification was applicable only to that sugar confectionary which was covered under heading 170490. During the period prior to 28/02/2005, heading 1704.90 did not cover bubble gum as the gums whether or not sugar coated including Chewing gum bubble gums and the like were covered under heading 170410 and accordingly heading 170490 of the old tariff did not cover bubble gum. However, in the new 8 digit tariff in force w.e.f. 28/2/005, there was change in the structure of heading 1704 pertaining to sugar confectionary (including white chocolate) not containing cocoa and in this heading while sub-heading 170410 covered only chewing gum whether or not sugar coated and as such bubble gum were not covered under the heading 170410, the sub-heading 170490 covered other sugar confectionary and thus covered bubble gums. The point of dispute is as to whether the en ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
