TMI Blog2007 (8) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... n 10-7-2007. We are of the view that looking to the subject matter of the controversy raised in the petition, this appears to be an eminently fit case where the petitioners should make a representation to the Central Government. Accordingly, if the petitioners make such a representation within one week from today, it is expected that the Central Government will decide the same as expeditiously as possible and preferably within one month from the date of receipt of the representation. As regards pendency of the proceedings arising from the show-cause notice, it will be open to the petitioners to make a request before the Commissioner of Central Excise to adjourn the hearing suitably so as to await the decision of the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods Rate of duty (1) (2) (3) (4) 04.01 0401.11 Flavoured milk, whether sweetened or not, put up in unit containers and ordinarily intended for sale. Nil. 2.2 It is submitted that even under the 8 digit code introduced from 28-2-2005, flavoured milk could only fall under Chapter 4 Heading No. 0402, more particularly under sub-heading No. 0402 99 90 reading as under :- CHAPTER 4 DAIRY PRODUCE; BIRD S EGGS; NATURAL HONEY; EDIBLE PRODUCTS OF ANIMAL ORIGIN, NOT ELSEWHERE SPECIFIED OR INCLUDED Notes :- 1. The expression milk means full cream milk or partiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e objective to change the rate structure of the excisable goods. 2.4 According to the department, as per the show cause notice dated 16-04-2007, the Flavoured milk falls in Chapter 22 under Tariff Item No. 2202 90 30. CHAPTER 22 Beverages, spirits and vinegar Tariff Item Description of goods Unit Rate of duty (1) (2) (3) (4) 2202 Waters, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2005] In the said notification, in the Table, after S. No. 11 and the entries relating thereto, the following S. No. and entries shall be inserted, namely :- (1) (2) (3) (4) 11A. 2202 90 30 Flavoured milk of animal origin Nil 2.6 The basic Notification No. 3/2005-C.E. is a general exemption notification prescribing effective rate for various excisable goods, and it is under this general exemption notification that Sr. No. 11A has been inserted from 15-6-2007 thereby specifying nil rate of duty for flavoured milk of animal origin. As the product in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The petitioners submission is that if this Notification had been issued without indicating Tariff Item No. 2202 90 30, it would have been open to the petitioners to contend that the petitioners were entitled to exemption from excise duty for the entire period from 28-2-2005 to 14-6-2007 by contending that the flavoured milk is only milk with sugar and flavour and is not beverage containing milk as such. Hence, it would have been open to the petitioners to contend that the flavoured milk made by them only falls under Tariff Item No. 0402 99 90 for which Nil rate of duty is prescribed right from 28-2-2005 onwards. 2.8 However, the Central Government itself having given the classification of Tariff Item No. 2202 90 30 in the Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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