TMI Blog2015 (9) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Tariff w.e.f. 1-1-2005, except that the 8-digit tariff is more detailed and specifically covers a large number of commodities in the General Group of the "preparations of vegetable, fruits, nuts or other parts of the plants". In our view, therefore, Board's Circular dated 6-2-88 clarifying that the potato slices fried in edible oil, salted and packed in printed plastic pouches (or other unit containers) are classifiable under Chapter 20 is applicable. Ratio of judgment [2011 (10) TMI 564 - UTTARAKHAND HIGH COURT] is squarely applicable to the facts of this case and hence, in view of this judgment also, the goods in question, would be covered under Heading No. 2005 20 00 of Chapter 20 and accordingly, the same would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han the products of Heading No. 2006 and were availing full duty exemption under Notification No. 3/2006-C.E. (Sl. No. 22) of the Table annexed to this Notification which prescribes 'nil' rate of duty for all the goods of Chapter 20 of the Central Excise tariff. The department, however, was of the view that the goods, in question, are correctly classifiable under Tariff Heading No. 2106 90 99 as other food preparations not elsewhere specified or included . According to the Commissioner, the potato chips being sold in the retail packages are covered by Sl. No. 30 of the Notification No. 3/2006-C.E., which covers ready to eat packaged food for which rate of duty prescribed is 8%. It is on this basis that after issue of show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not elsewhere specified or included and scope of the Chapter 20 of the new tariff w.e.f. 1-1-2005 is the same as the scope of Heading 20.01 of Chapter 20 of the tariff during period prior to 1-1-2005, that, in view of this, the Board's circular dated 6-2-88 clarifying that potato wafers are classifiable under Heading No. 20.01 is still applicable, that the Hon'ble Uttarakhand High Court in the case of Shriya Enterprises v. Commissioner reported in (2012) 51 VST 413 (Uttarakhand), wherein the point of dispute was as to whether potato chips are classifiable under tariff heading covering, all processed and preserved vegetables, vegetable mushrooms and fruits, including fruit jams, jellies, fruit squash, paste, fruit drinks, fruit jui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein the Board has clarified that even if the goods covered by Sl. No. 29 of the Notification No. 3/06-C.E. are in the packaged form, the same would still be eligible for exemption under Sl. No. 30 of the notification, that this circular of the Board has been totally ignored by the Commissioner, that the Tribunal in the case of CCE, Indore v. Hello Agro Foods Ltd. reported in 2012 (279) E.L.T. 529 (Tribunal - Delhi) has held that Rings made out of flour of rice, wheat and potato, fried after adding flavour and packed for retail sale are correctly classifiable as other food preparations under 2108.99 and hence are eligible for exemption as namkeens under Notification No. 4/97-C.E., that the Tribunal in the case of Collector of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings of the Commissioner in Para 4.9 of the impugned order pleaded that the goods, in question, being ready to eat packaged food would be covered by Sl. No. 30 of the Notification No. 3/06-C.E. and not by Sl. No. 29 which covers sweetmeats (known as 'misthans' or 'mithai' or by any other name), namkeens, etc. He accordingly pleaded that there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. The point of dispute in this case is as to whether the fried and salted potato wafers packaged in retail packing for sale and which are sold under the brand name 'Lays are classifiable under sub-heading No. 2005 20 00 as potatoes prepared or pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question as to whether potato chips are classifiable under entry, all processed and preserved vegetables, vegetable mushrooms and fruits including fruit jams, jellies, fruit squash, paste, fruit drinks, fruit juices and achar (wherein sealed containers or otherwise), has in Para 24 of the judgment held that potatoes chips are processed vegetable and would be covered under the processed vegetable and are not covered under the residuary entry. We are of the view that the ratio of this judgment is squarely applicable to the facts of this case and hence, in view of this judgment also, the goods in question, would be covered under Heading No. 2005 20 00 of Chapter 20 and accordingly, the same would be exempted from duty under Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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