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2016 (2) TMI 784 - CESTAT NEW DELHI

2016 (2) TMI 784 - CESTAT NEW DELHI - 2016 (335) E.L.T. 300 (Tri. - Del.) - Classification - whether or not the appellants are liable to pay SED on Aerated Water, Beverages in Bag (BIB) as a compound preparation intended for use in the automatic vending machine - whether 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 Ce .....

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der 2106 90 50 in terms of Supplementary Notes 4 of Chapter 21 of 1st Schedule cannot be included under Tariff item 2106 90 19 of 2nd Schedule. We find that impugned order simply quoted the Boards above-mentioned clarification without any analysis of its application. Provisions of General Clauses Act were quoted by lower Authority. We find no possible application for the same in the present case. The impugned order has not analyzed the appellant's contention with reference to the Chapter Notes o .....

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his appeal is against order dated 05/01/2007 passed by Commissioner of Central Excise (Appeals-II), Jaipur. The appellants are engaged in the manufacture of Aerated Water, Beverages in Bag (BIB) liable to Central Excise duty. They have filed a refund claim for ₹ 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 prepar .....

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appeal. 2. The learned Consultant for the appellant submitted that the Central Excise Tariff Act got amended through Central Excise Tariff (Amendment) Act, 2004, whereby 6 digit Central Excise Tariff code were converted into 8 digit Central Excise Tariff code. Consequent on such amendment, BIB is classified under Tariff entry 2106 90 50 and is not liable to Special Excise Duty in terms of the 2nd Schedule to the Tariff Act. He further submitted that BIB is a soft drink concentrate suitable for m .....

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dispute arose regarding the appellants liability to pay SED on BIB used for automatic vending machine of beverages. The learned Consultant submitted that the reliance placed by the lower Authorities on Note 3 of the 2nd Schedule is misconceived. The impugned product is specifically covered under 2106 90 50 of the 1st Schedule in view of supplementary notes 4 of Chapter 21 which states that -Tariff item 2106 90 50, inter alia, includes preparations for lemonades or other beverages, consisting, f .....

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em 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 of the First Schedule shall apply to the interpretation of this Schedule . 4. He further submitted that the Boards clarification cannot be applied retrospectively to their case contrary to the statutory provisions, as discussed above. Even if the Boards clarification has .....

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e findings of the lower Authorities and submitted that the entry in the 2nd Schedule for Tariff item 2106 90 19 should be interpreted with reference to Board s clarification dated 17/08/2006. Since preparations for lemonades or other beverages intended for use in the manufacture of aerated water are classified under 2106 90 19, SED is liable to be paid. 6. We have heard both the sides and examined the appeal records. The point for decision is whether or not the appellants are liable to pay SED o .....

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rations 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 classification of the same product i .....

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