TMI Blog2007 (3) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... uty element will have to be examined. As stated above, this examination is warranted because, in the present case, one cannot go by general implication that the wholesale price would always mean cum-duty price, particularly when the assessee had cleared the goods during the relevant years on the basis of the above exemption notification dated 1-3-1997 Matter is remitted back for recomputation of duty. - Civil Appeal Nos. 8595-8596 of 2001 & other - - - Dated:- 19-3-2007 - [Judgment per : S.H. Kapadia, J.]. - Civil Appeal Nos. 8595-8596/2001 : These civil appeals are filed by the assessee under section 35L of the Central Excise Act, 1944 against decision dated 10-9-2001 passed by CEGAT. The short question which arises for determination is the classification, of 'roasted peanuts' and 'moongfali masala mazedar' under the Schedule to the Central Excise Tariff Act and consequential demand for duty of excise. 2.The Appellant-assessee manufactures namkeens like aloo bhujia, chholey masala, roasted peanuts and moongfali masala mazedar. Appellant claims that all the four items fall under Heading 21.08 as Namkeen. The Appellant claims that accordingly all the four items are exempted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records and having examined the process undertaken by the assessee, we are in agreement with the view expressed by the Tribunal ("CEGAT" ) regarding classification of roasted peanuts under Heading 20.01. The Tribunal had adopted a correct test when it says that the essential structure of the peanut is not changed by the process of roasting. The assessee merely applies salt to roasted peanuts which does not obliterate the essential character. Moreover, roasting is a process. That process has not been excluded in Note 1 to Chapter 20. Therefore, roasted peanuts are covered by Chapter 20. Even according to the Explanatory notes of HSN under Heading 20.08 ground-nuts, almonds, peanuts etc. which are dry-roasted, fat-roasted whether or not containing vegetable oil are the items which all would stand covered by the said Heading 20.08. 7.According to the appellant -assessee, roasted peanuts would fall under Chapter 21 - Miscellaneous Edible Preparations. In this connection, reliance is placed by the appellant on Heading 21.08 which refers to Edible preparations, not elsewhere specified or included. Learned counsel in particular also relies upon sub-heading 2108.99 - Other. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther than the nuts. It is an oil preparation. It makes use of gram flour (besan). It undergoes the process of deep frying. When such a process is applied one cannot apply the principle of predominance. The only difference between aloo bhujia and moongfali masala mazedar is that in the former case the namkeen is essentially made of aloo whereas in the later case it is a namkeen essentially made from a pulse (dal). Pulse can be chana, malka, masoor, moong, urad etc. All these products are only known as namkeens in the market. In the circumstances, we are of the view that moongfali masala mazedar falls under Chapter 21. It falls under Heading 21.01, sub-heading 2108.99 and, therefore, the assessee is entitled to exemption. 9.In the present matter, one of the points which arises for determination is whether the Department was entitled to invoke the extended period of limitation. Although, the courts below have examined the said question, they have lost sight of an important fact, namely, that at the instance of the Department, the assessee had filed a revised declaration on 19-11-1997, in the circumstances, the show cause notice dated 5-5-1998 is within six months, consequently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken on the liability to pay all taxes on the goods sold and has not sought to realise any some in addition to the price obtained by it from the buyer. In the said case, it has been held that when the assessee has charged cum-duty price, then in arriving at the assessable value of the goods, the element of duty payable has to be excluded. To this extent, there is no difficulty. However, in the present case, the Department contends that there is no question of implication when throughout the relevant years the assessee has been clearing the goods on the basis of the exemption notification of 1997, referred to above, which is not applicable to roasted peanuts, and, therefore, according to the Department, the above judgment of this Court in the case of Maruti Udyog Ltd. has no application to the facts of the present case. 13.On the other hand, it is urged on behalf of the assessee that the basis for levy of excise duty under section 4(4)(d)(ii) of Central Excises Salt Act, 1944 is the wholesale price. According to the assessee, that price will include the element of duty payable because such duty forms part of the consideration for sale of the goods according to the terms and cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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