TMI Blog2016 (9) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... t may have the character of the beverages of Heading 22.02, but the classification under Chapter 22.02 has not been argued by any side in the present proceedings i.e. either by the Revenue or by the assessee/appellant. The Revenue specifically pleads for classification under Chapter Heading 21069040 and 21069050. Consequently, from the records available and the submissions given by both sides, when no other alternative classification like Heading 22.02 etc. has been cited by either the appellant or the Revenue, and after considering the description given for the Chapter 2106 of Central Excise Tariff as well as the Explanatory Notes to HSN for Chapter 2106 mentioned above, we are of a considered view that the subject items are to be classified under Chapter Headings. 21069040/2106905. Notification No. 3/2005-CE dated 24.2.2005 - benefit of exemption - eligibility - chocolate syrup, Butter Scotch, Blue curacao, Grenadine, Mint, Orange, Triple Seed, Caramel, Natural Caramel, Vanila, Lime - goods sold without brand name of assessee - Held that:- the appellant claims that goods were unbranded whereas the Revenue says that there was no sufficient evidence produced by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2016 - Dated:- 8-9-2016 - Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) Shri B.L. Narasimhan, Advocate for the appellant Shri Rahul Tangri, CA Shri R.K. Manjhi, D.R. for the respondent ORDER Per Ashok K. Arya 1. Both sides have been heard in detail. 2. The impugned order No. 21-22/2008-CE dated 3.7.2008 passed by Commissioner, Central Excise, Jaipur-I decided two Show Cause Notice (SCNs) both dated 4.4.2007 issued to the noticee appellants. The total period involved is 2003-2004 to February, 2007. 3. There are following main issues which require consideration and decision by this Tribunal: (i) Classification of Milk Shake Mixes. (ii) Classification of flavoured syrups/fruit syrups/Squashes. (iii) Goods sold without brand name - Eligibility to claim benefit of exemption Notification No. 3/2005-CE dated 24.2.2005 (Sr. No. 9) in respect of chocolate syrup, Butter Scotch, Blue curacao, Grenadine, Mint, Orange, Triple Seed, Caramel, Natural Caramel, Vanila, Lime (all falling under Chapter Heading 2108.91/21069040) on the ground that the same do not bear brand name of the assessee/appellant. (iv) Goods sold without b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der hold that subject goods- various kinds of Flavoured Syrups/Fruit Syrups are classifiable under Chapter Heading 21069040/2169050 and not under Chapter 20 of Central Excise Tariff, which is the claim of the assessee appellant. 6.2.1 In this regard, the assessee has inter alia submitted as follows: (i) These are fruits syrups with high fruit content viz. above 25% in all cases. (ii) The fruit content in the product is more than 25%, which cannot be brushed aside by the Deptt. without producing any evidence to the contrary. 6.2.2. The department in this regard mainly argues that mere submission of purchase invoices of Fruits etc. does not lead to the conclusion that the same were used in the manufacture of impugned syrups. 6.2.3 Appellant refers to CESTAT, Delhi decision in the case of Godrej Foods Ltd. Vs. CCE, Indore 2006 (202) ELT 473 (Tri.-Del.). We find in the case of Godrej Foods (supra) dispute is for classification between Chapter Heading 20.01 and Chapter 22.02 whereas in the present case rival Chapter Headings are 21.06 (Deptt. s stand) vs. Chapter 20 (party assessee s stand). Therefore this case is not applicable to the present facts. 6.2.4 We have gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntaining added flouring or colouring matter, not elsewhere specified or included; and so on. 6.2.6 For the present purpose, the rival entries for classification are Chapter 20 (where the assessee wants classification) and Chapter Heading 2106 (where Revenue wants to classify the subject items). We find that the appellant has not given complete ingredients of the subject items; they have only conveyed that products have got more than 25% fruit contents. The Explanatory Notes to HSN for Chapter Heading 2009 inter alia mention that wherever greater quantity of water has been added, the resultant diluted product may have the character of the beverages of Heading 22.02, but the classification under Chapter 22.02 has not been argued by any side in the present proceedings i.e. either by the Revenue or by the assessee/appellant. The Revenue specifically pleads for classification under Chapter Heading 21069040 and 21069050, wherein descriptions given are as follows: 21069040 : Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included: lactose syrup: glucose syrup and malto dextrine syrup. 21069050: Compound preparations for making non-alc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants in any case are not entitled to the benefit of the Notification No. 3/2005 for these goods up to 28.2.2005. Therefore, the demand of duty of Central Excise on all these goods for the period up to 28.2.2005 is hereby confirmed. However, for the period after 28.2.2005, the matter is remanded back to the original adjudicating authority to decide afresh within three months of receipt of this order. 6.5 Demand time barred and penalty not imposable: 6.5.1 The appellants have argued that the matter involves interpretation of the statutory provisions, therefore extended period of limitation is not invocable. From the facts on record, we find enough force in the submissions of the appellants and there is no material on record to prove wilful suppression or any mis-statement of facts with intention to evade payment of duty of Central Excise on the part of the appellants. Therefore, it is held that liability of duty of Central Excise can be fixed only for the period of one year from the relevant date. Consequently, demand beyond the period of one year from the relevant date is time barred as per the provisions of law of Central Excise. 6.5. 2 As there is no wilful suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X
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