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2016 (8) TMI 9 - CESTAT BANGALORE

2016 (8) TMI 9 - CESTAT BANGALORE - TMI - Classification of flavored milk packed in small pouches instead of bottles called as MILMA SIP - classifiable under Chapter 04.04.90 CET carrying Nil rate of duty or heading 21.05 CET (i.e. Ice Cream and other edible ice whether or not containing cocoa) - Held 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 .....

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S. Garg, Judicial Member And Shri Ashok K. Arya, Technical Member For the Appellant : Shri Manoj Pillai, Advocate For the Respondent : Smt Ezilmathi, AR ORDER Per S. S. Garg The present appeal is directed against the order of the Commissioner (Appeals) vide which he set aside the Order-in-Original. Briefly the facts of the present case are that the appellant is a Co-operative Society registered under Kerala Co-operative Societies Act, 1969. The main sphere of activity of the appellant is collect .....

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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 rate and proposing penalty under Rule 173Q. The appellant filed a reply and the adjudicating authority accepted the contention of the appellant and held that the product is classifiable under item No. 040490 vide its order dated 20.04.1999 which item carried Nil rate of duty. Thereafter Commissioner of Central Excise, Coc .....

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if it is not possible to classify under that heading then the next possibility is to classify under heading 04.04.90. He also submitted that the impugned item cannot be taken out of the chapter 04 since it is a Dairy Product and its classification as Edible ICE is factually and legally wrong. He further submitted that MILMA SIP is a product to be sipped and not licked as Ice Cream or Edible Ice. MILMA SIP is a milk based product and Edible Ice is a water-based product. MILMA SIP is a Dairy produ .....

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r 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 in the production of MILMA SIP and this amounts to preparation of a dist .....

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ee or classifiable under heading 21.05 as claimed by the Revenue. The finding of the original adjudicating authority is that MILMA SIP being milk based product hence rightly classifiable under 04.04 and does not attract any duty. On review of the Order-in-Original, the Deputy Commissioner challenged the decision of the adjudicating authority and on appeal the learned Commissioner (Appeal) reversed the Order-in-Original and held that MILMA SIP is Edible Ice falling under 21.05 and not under 04.04 .....

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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 .....

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accepted. Further the flow diagram given also shows a number of processes being carried out and amounting to preparation of a distinct product different from milk. In the case of Nestle India Ltd. V. CCE [2001 (132) ELT 134 (T)] the products viz Milkmaid Kalakand Mix was having 68.8% of Dairy powder and Milkmaid Rabri Mix was having 57.5% of Milk Powder. Hence the constituent of milk predenominate and CEGAT correctly held that the products are classifiable under heading 04.04. In the instant ca .....

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