9911796707
TMI Blog2016 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ieties Act, 1969. The main sphere of activity of the appellant is collection of milk from various primary milk societies, pasturise, pack and sell it to various consumers. The appellants also produce Curd, Ghee, flavored milk, Ice Cream etc and they also produce one product called MILMA SIP which is nothing but flavored milk packed in small pouches instead of bottles. As per the appellant SIP UP was classified under Chapter 04.04.90 CET carrying Nil rate of duty. On these facts a show-cause notice was received by the appellant from the Superintendent Central Excise, Trivandrum proposing to reclassify the MILMA SIP under heading 21.05 CET (i.e. Ice Cream and other edible ice whether or not containing cocoa) demanding duty at the appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder chapter 21. He further submitted that the MILMA SIP which has a larger percentage of water, is not classifiable as water based product. It can only be classified as a milk product in a gaseous, liquid or solid form. Hence change of form due to heating or cooling will not alter tariff classification. 3. On the other hand the learned AR submitted that the impugned order is in accordance with law and the conclusion of the respondent that the product in question is Edible Ice falling under chapter heading 2105 and not 0404 on the following four grounds: a) In MILMA SIP, the milk constituent is less than 25% and hence the product cannot fall under chapter 04. b) The flow diagram that also shows a number of processes are being carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l difference the Deputy Commissioner Trivandrum in his report V/21/2/9/2000 dated 07.10.2002 reported that the product is removed in solid form, in container called insulated boxes . On completion of manufacture, the product is in liquid form, but to preserve without decaying, the same is frozen by keeping it in freezers for about 2 days. The item is kept in shops also, in freezers. The product is actually a solidified liquid and while using it has to be in a liquid form to sip. Further the learned Commissioner (Appeals) has observed in para 5 as under: "On a perusal of the flow chart submitted by the appellants it is seen that the product contains milk fat 2%, protein 3.5% and total solid not less than 20%. Hence about 75% of the product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus deteriorate in quality and hence it is kept in freezers and transported in insulated boxes in the forms in which the goods are or can be marketed as in solid form. Further as water predominate among the constituents of the product and contains permitted flavours and colours, it clearly satisfy the definition of edible ice , as per definition contained in Prevention of Food Adulteration Rules 1955. Even if the definition of edible ice as under the Prevention of Food Adulteration Act 1955 is not adopted, the goods would still be nothing but edible ice. The Chemical Examiner s report on the factual aspect also is in line with this. Hence, the product MILMA SIP manufactured by the appellant is to be held as classifiable under heading 2105 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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