TMI Blog2007 (4) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. 4. Before we proceed to dwell upon the various arguments placed before us by both sides in support of classification adopted by them, we would like to reproduce the process of manufacture of the product as detailed in the order of Commissioner (Appeals) and not disputed by the appellant. "The process of manufacture of the product, as given in the show cause notice involves two stages - Production of base material and Coating of Base material. In the production of base material, semonila, wheat flour, sugar, cocoa (low fat), salt, reduced iron, zinc vitamin 3608, 3611 and 3612 and BHA are used in required proportions. In second stage i.e. coating of base material, sugar, cocoa (high fat), water, malt extract, vanillin and chocolate flavour are used in required proportion. To coat the base material sugar and water are added in the mixing tank, which is heated. Cocoa (high fat), malt extract, vanillin and chocolate flavour are added to get a syrup solution for coating. This solution is sprayed over the base material in coating drum and dried in coating dryers to get final product chocos. The notice quotes statement of Shri Vijay S. Bhosale, Production Manager of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be ousted from Chapter 19 and to find its place under Chapter 18. 7. The appellants have strongly assailed the methodology adopted by the Chief Chemical examiner for arriving at percentage of cocoa content. As a result of cross examination of Astt. Chemical Examiner, during the course of adjudication proceedings before the Astt. Commissioner, it was disclosed that the percentage of cocoa contents have been arrived at by determining the Theobromine contents in the cocoa powder. The said method adopted by the chemical examiner was in accordance with the book 'The Chemical Analysis of Food, VIIth Edition by David Pearson'. By drawing our attention to the said book (Pages 282), Shri Ashraf Hidaytulla, learned senior advocate has strongly contended that the method adopted for arriving at Theobromine was in accordance with the method prescribed by Gerritsma Koers. The simple method described by Gerritsma Koers is that Theobromine is extracted by shaking with chloroform and determined volumetrically. Learned Advocate criticized the said adoption of method by the chemical examiner to arrive at the Theobromine contents and submits that for arriving at the correct percentage of coc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure commonly employed is that described by Moir and Hinks (1935), whose modification for chocolate cake is given on p. 230. The factor 3.26 is used for the conversion of nitrogen into 'total alkaloid'. This is based on the assumption that the alkaloids in cocoa nib consist of theobromine and caffeine in the ratio 9 to 1. The authors found that roasted fat-free dry blended cocoa nibs contained on the average 3.155 of 'total alkaloids'. The amount of fact free cocoa solids in a product such as chocolate can therefore be calculated by dividing the percentage of 'total alkaloids' by 0.0315. Harral (1940) coverts the theobromine to caffeine, which is more readily extracted with chloroform than theobromine. Chapman, Fogden and Urry (1963), described a method for determining total alkaloids involving adsorption on fuller's earth, removal with alkali and measurement of the ultra-voilet absorption after acidifying (p 231). For cocoa, 0.1 g sample is employed and dry fat free cocoa = total alkaloids 33.3". 8. The reading of the above leads us to believe that process described by Wadsworth stands criticized by Gerritsma Koers and the method prescribed by him was critically reviewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopted to determine the cocoa contents in the Chocos on the basis of Theobromine contents in the product. As such, we are of the view that the appellant's contention that conducting of test on the basis of Theobromine contents instead of the method described by Moir Hinks, prescribed for de termination of cocoa contents on the basis of Alkaloid would be settled to the Revenue's case, do not stand appreciated by-us. 10. Further, we find that appellants have relied upon HSN explanatory note. Our attention has been drawn to Note 3 to HSN which provides for a method whereby the cocoa contents of a product can normally be calculated by multiplying the combined Theobromine and Caffeine by a factor of 31. The original adjudicating authority has observed that the method prescribed in HSN for the purposes of arriving at cocoa content, can not be held to be binding and over-riding the specific provisions of Central Excise Tariff Act especially when there is enough technical literature to support the Revenue's stand that adoption of method based upon Theobromine contents is effective. The appellate authority dismissed above plea of appellant by observing that the relevant entry of Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y David Pearson and detailed calculations have been made the basis for arriving at the percentage of cocoa. The above expert report does not stand rebutted by assessee by producing any contrary report on record, though they were in a position to do so. We have held number of times that a opinion given by expert can only be demolished by another expert's opinion. In the absence of any other opinion existing in contrast to the chemical examiner's report, duly supported by methodology described in David Pearson's book along with the opinions of Food Technological Research Institute, Mysore and Barry Callebaut Asia Pacific (S) Pte. Ltd., Singapore, we held that the report arrived at by chemical examiner is correct and true reflection of fact. 12. As such, in view of the above discussions, we hold that the appellant's product 'Chocos' which is being marketed by them as "Crunchy Chocolate Wheat Scoops", is properly classifiable under Heading 18.04, as held by authorities below. 13. We also take note of the appellant's objection that Commissioner (Appeals) has held the product as classifiable under Heading 18 by referring to Chapter Note 3 of Chapter 19 and by referring to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cocoa." The appellants have contended that by going to the other two clauses, the Commissioner (Appeals) has extended the scope of proceedings. However, we find that the above reasoning adopted by appellate authority is only based upon the interpretation of provisions of Chapter Note 3, Rule 1 of General Rules of interpretation to the schedule to Central Excise Tariff Act, 1985 is to the effect that classification shall be determined according to the terms of heading and any relative section or chapter note. As such, any classification dispute require reference to the chapter note and section note and interpretation of the same. The reference to chapter note by Commissioner (Appeals), for the purpose of determining the correct classification of the product can not be faulted upon. In any case, the Chapter Note 3 of Chapter 19 was referred to in the show cause notice as also in the order of Astt. Commissioner. Merely because the dispute was in respect of percentage contents of cocoa, in terms of 1st clause of said chapter note, does not mean that the other clauses can not be resorted to and have to be ignored. What the Commissioner (Appeals) has deemed to have meant that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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