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2015 (9) TMI 982 - CESTAT NEW DELHI

2015 (9) TMI 982 - CESTAT NEW DELHI - 2016 (331) E.L.T. 119 (Tri. - Del.) - Denial of exemption claim - Classification of salted potato chips - 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 preserved otherwise than by vinegar or acetic acid, not frozen, other than products of Heading 2006" or the same are classifiable under Heading No. 2006 90 .....

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he 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 exempted from duty under Notification No. 3/2006-C.E. (Sl .....

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o. 29 of the Notification. - as per the CBEC Circular No. 841/18/2006-CX dated 06/12/2006 although they made classify under Central Tariff Heading 2106 90 99 the item in question is not dutiable, therefore, we hold that impugned order is not sustainable in the eyes of law consequently impugned order is set aside - Decided in favour of assessee. - Excise Appeal No. 50777 of 2014 - Final Order No. 52339/2015 - Dated:- 22-7-2015 - Ashok Jindal, Member (J) And B. Ravichandran, Member (T), JJ. For th .....

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on 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 covere .....

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with Section 11AC of the Central Excise Act, 1944. The duty demand has been confirmed by invoking extended period under proviso to Section 11A (1). Against this order of the Commissioner, the appellant has filed this appeal. 2. Heard both the sides. 3. Shri B.L. Narasimhan, advocate, the learned counsel for the appellant, pleaded that before introduction of the 8-digit Tariff w.e.f. 1-1-2005, Chapter 20 had only one heading 20.01 which covered "preparations of vegetables, fruits, nuts or o .....

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siduary heading and Heading 20.01 is more specific, that in the 8-digit tariff in force w.e.f. 1-1-2005, Heading No. 21.06 is the same as Heading 21.08 of the old tariff covering as "food preparations 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 waf .....

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ontainers or otherwise)", held that potato chips are processed vegetables and the same would be covered by the entry "All processed and preserved vegetables, vegetable mushrooms and fruits including fruit jams, jellies, fruit squash, paste, fruit drinks, fruit juices and achar", that the ratio of this judgment is squarely applicable to the facts of this case and hence the potato chips would be correctly classifiable under sub-Heading No. 2005 20 00 of chapter as "other vegeta .....

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e, chabena and similar edible preparations in ready for consumption form, papad and jaljeera", for which the rate of duty prescribed is nil, that the Commissioner by classifying the goods, in question, under Heading No. 2106 90 99 has wrongly given a finding that these goods are covered by Sl. No. 30 of the Notification No. 3/06-C.E. which covers "ready to eat packaged food" and for which the rate of duty prescribes is 8% adv., that the Commissioner ignored the Board's Circula .....

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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 Excise, Bombay v. Indian Organic Chemicals Limited reported in 1998 (104) E.L.T. 149 (Tribunal) has held that potato wafers not put up in unit containers are classifiable under Heading No. 2001.90 of the Tariff .....

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impugned order and pleaded that the Board's Circular No. 6/88, dated 18-2-88 is applicable to the old four digit tariff, while the Central Excise Tariff in force w.e.f. 1-1-2005 is totally different. He pleaded that the potato chips cannot be called "other vegetables, preparation preserved, otherwise than by vinegar or acetic acid, not frozen..." and the same have to be treated as "food preparations not elsewhere specified or included." With regard to the appellant's .....

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ion 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" .....

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oods of Chapter 20 and prescribes a nil rate of duty. The Commissioner by classifying the goods, in question, under sub-heading No. 2106 90 99 has held that the same are "ready to eat packaged food" covered by Sl. No. 30 of the Notification No. 3/06-C.E. for which the rate of duty is 8% adv. 7. Coming to the question of classification, we are of the view that there is no difference between Chapter 20 of the Central Excise Tariff prior to 1-1-2005 and Chapter 20 of the Central Excise Ta .....

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the Hon'ble Uttarakhand High Court in the case of Shriya Enteprises v. Commissioner (supra), while deciding a 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 .....

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