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Perfetti Van Melle India Pvt Ltd Versus CCE-Delhi-III

2015 (8) TMI 343 - CESTAT NEW DELHI

Concessional rate of duty - bubble gum - whether in the nature of sugar confectionary (excluding white chocolate) not containing cocoa" - Duty exemption under notification no. 6/02 CE dated 1/3/2002 - Held that:- When w.e.f, 28/02/2005 heading 1704 pertaining to "sugar confectionary (including white chocolate) not containing cocoa" had been re-structured and as per the re-structured heading, the sub-heading 170490 covered bubble gum, and during period w.e.f. 28/2/2005, the exemption notification .....

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ble gum.

W.e.f. 1/3/2006 notification no. 06/02 CE was rescinded and was replaced by notification no. 03/06CE dated 1/3/2006 and serial no. 16 of this notification also provided concessional rate of duty of 8% adv.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-hea .....

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ionary (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 also take note of the fact that in terms of the judgments of the Tribunal in the case of Joyco India Limited Vs. CCE-Chandigarh [2002 (4) TMI 338 - CEGAT, NEW DELHI] wherein it was held that bubble gum and chewing gum .....

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- Final Order No. 51936/2015 - Dated:- 22-5-2015 - Rakesh Kumar, Member (T) And Sulekha Beevi CS, Member (J),JJ. For the Appellant : Shri B L Narsimhan, Adv For the Respondent : Shri M S Negi, DR ORDER Per: Rakesh Kumar: The facts leading to filling of this appeal are, brief, as under: 1.1 The appellant are manufacturers of bubble gum chargeable to Central Excise Duty. The period of dispute in this case is from 25/4/2005 to 28/2/2006. There is no dispute that bubble gum contains sugar and is cl .....

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te chocolate) not containing cocoa" falling under sub-heading 1704.90. During the period prior to 28/2/2005 when there was six digit Central Excise Tariff, the main heading of 17.04 was "sugar confectionary (including white chocolate) not containing cocoa" and sub-heading 1704.10 of the heading 1704 covered "gums, whether or not sugar coated including chewing gum, bubble gum and the like", the other sub-heading 1704.90 of heading 1704 covered "other items of the hea .....

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4.90, 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&qu .....

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falling under sub-heading 1704.90". The appellant claimed exemption under this notification and accordingly made clearance of bubble gum during period from 28/4/2005 to 28/2/2006 at the concessional rate of duty of 8% ad-valorem. The department, however, was of the view that even during the period w.e.f. 28/2/2005, the notification no. 06/02CE dated 1/3/2002 (serial no. 247) must be read with the old six digit tariff in force during period prior to 28/02/2005 and in which heading 170490 di .....

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not containing cocoa falling under heading 1704.90." It is only by notification no. 29/06CE dated 4/5/2006 that serial no. 16 of the notification no. 3/06 CE was amended and replaced by the entry "sugar confectionary (excluding white chocolate and bubble gum)." The contention of the appellant is that it is only w.e.f. 4/5/2006 that bubble gum would not be eligible for concessional rate of duty but during the period from 28/2/2005 to 3/5/2006, the same would be eligible for exempt .....

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f the Commissioner, this appeal has been filed. 2. Heard both the sides. 3. Shri B.L. Narsimhan, Advocate, the ld. Counsel for the appellant, pleaded that during the period of dispute, i.e., from 28/2/2005 to 3/5/2006, notification no. 6/02CE (serial no. 247) and its successor notification no. 3/06-CE (Serial no. 16) prescribed concessional rate of duty of 8 per cent ad-valorem for "sugar confectionary (excluding white chocolate) not containing cocoa" and falling under sub-heading 1704 .....

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ng 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 i .....

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e concessional rate of duty to "sugar confectionery (excluding white chocolate) not containing cocoa falling under sub-heading 1704.90", the benefit of concessional rate of duty cannot be denied to the appellant. He, pleaded that it is only w.e.f. 4/5/2006 that the successor exemption notification no. 3/06CE (serial no. 16) was amended so to the exclude the bubble gum from the benefit of notification. He, therefore, pleaded that the impugned order is not correct and there is no justifi .....

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eading 1704.10 only; that even though w.e.f 28/02/2005, the old six digit Central Excise Tariff had been replaced by the 8 digit HSN based Central Excise Tariff and sub-heading 170490 of the Central Excise Tariff w.e.f. 28/2/2005 also covered bubble gum, the entry 247 of the notification no. 06/02CE must be read only with sub-heading 170490 of the old Central Excise Tariff Act, i.e., the Tariff as it existed during period prior to 28/02/2005 and that it is totally wrong to read the entry no. 247 .....

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rate of duty under notification no. 06/02CE(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 p .....

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e 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 entry "sugar confectionary (excluding white chocolate) not containing cocoa and falling under sub-heading 170490" against serial no. 247 of the notification no. 06/02CE must be read with the heading 1704 .....

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o. 247) continued to prescribe concessional rate of duty for "sugar confectionary (excluding white chocolate) not containing cocoa covered by heading 170490", in our view, the benefit of exemption under this notification cannot be denied as - (a) there is no dispute that bubble gum contains the sugar and is covered by the expression "sugar confectionary (excluding white chocolate) not containing cocoa" and (b) during period w.e.f. 28/02/2005 heading 170490 also covered bubble .....

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