2016 (2) TMI 784

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..... iled a refund claim for Rs. 1,02,149/- on the ground that they have paid under protest Special Excise Duty on BIB which is used for manufacture of Aerated Water in automatic vending machine. The claim was rejected by the Original Authority holding that preparations for lemonades and other beverages intended for use in the manufacture of aerated water are classifiable under Tariff item 2106 90 50 of the 1st Schedule and under Tariff item 2106 90 19 in the 2nd Schedule to the Central Excise Tariff Act 1985 w.e.f. 28/02/2005. The Original Authority relied on Board Circular dated 17/08/2006. On appeal, the Commissioner (Appeals) vide the impugned order upheld the original order and rejected their appeal. Aggrieved by this, the appellant is befo .....

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..... nsisting, for example, of flavoured or coloured syrup, syrup flavoured with an added concentrated extract, syrup flavoured with fruit juice and intended for use in the manufacture of aerated water, such as in automatic vending machines. The learned Consultant submitted that the 8 digit classification cannot be different for different schedules to the Tariff Act. For this, he drew our attention to Notes 1 and 2 of the 2nd Schedule which are as below :- "1. In this Schedule, 'heading', 'sub-heading', 'tariff item' and 'Chapter' mean respectively a heading, sub-heading tariff item and Chapter in the First Schedule. 2. The rules for the interpretation of the First Schedule, the Section and Chapter Notes and the General Explanatory Notes o .....

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..... entioned above. The classification of BIB and heading 2106 90 50 in the 1st Schedule is not disputed. This heading is not figuring in the 2nd Schedule for the purpose of levy of SED. The Boards clarification dated 17/8/2006 relied upon by the lower authority states that preparations for lemonades and other beverages intended for use in the manufacture of aerated water are classifiable the Tariff Item 2106 90 50 in the 1st Schedule and under Tariff item 2106 90 19 in the 2nd Schedule to the Central Excise Tariff Act 1985 w.e.f. 28/2/2005. We find with this clarification the imposition of SED on BIB also was sought to be justified by the lower Authorities. We find that such finding is misconceived. The reliance placed for different classific .....

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