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2016 (9) TMI 1130 - CESTAT NEW DELHI

2016 (9) TMI 1130 - CESTAT NEW DELHI - TMI - Classification - Milk Shake Mixes - whether they are to be classified under Chapter Heading 1901.90 90 of Central Excise Tariff as per Revenue or under 0404 as claimed by the assessee - Held that:- by considering the CESTAT's decision in the case of Amrit Foods Vs. CCE, Meerut-I [2006 (3) TMI 523 - CESTAT, NEW DELHI] endorsed by Hon ble Apex Court in the case of CCE, Vs. Amrit Food [2015 (9) TMI 1269 - SUPREME COURT], we hold that the Milk Shake Mixes .....

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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. - Consequently, from the records available and the submissions given by .....

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ocolate 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 to prove that the goods were unbranded. We remand the case back to the original adjudicating authority for decision afresh on this issue within three months of receipt of this order, wh .....

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ontainer. The appellants say that the goods were in unit container up to 28.2.2005. Further from the facts on record for the period after 29.2.2005 it is not proved that the goods were not bearing the brand name. It means that the assessee/appellants 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 perio .....

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pellants. 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. As there is no wilful suppression or mis-statement with intention to evade payment of duty of excise by the appellants, the penalties imposed of ₹ 71,83,194/- on the appellant No. 1 under Section 11AC of Central Exc .....

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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 .....

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ning Chinese Flavour. (v) Demand is time barred and penalty not imposable. 4. The appellants have been represented by the ld. Advocate, Shri B.L. Narasimhan and the Revenue has been represented by the ld. AR Shri R.K. Manjhi. 5. We have carefully considered full facts of the case and submissions of both the sides along with the case laws cited. 6. We shall take up the impugned issues for consideration and decision one by one below: 6.1 Classification of Milk Shake Mixes : The impugned order held .....

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said decision in its para 11 inter alia observes as under: 11. We find that in the present case no other ingredients except permissible stabilizers have been added. Addition of stabilizers is essential to maintain the consistency and shelf life of the products. HSN Explanatory Note also qualifies the addition of stabilizers without changing its classification from Chapter 4 to 19. The ratio of the decisions relied upon by the Revenue has no relevance to the present dispute. We, therefore, classi .....

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of Amrit Foods (supra) endorsed by Hon ble Apex Court we hold that the subject items, Milk Shake Mixes are rightly classifiable under Chapter Heading 0404 only. 6.2 Classification of Flavoured Syrups/Fruit Syrups: The Commissioner in the impugned order 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, .....

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fers 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 through the contents of Chapter 20 of Central Excise Tariff where Pr .....

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ter 20 only. The Revenue submits that though the assessee submitted the purchase invoices of fruits that does not lead to the conclusion that the said fruits were used in the manufacture of subject goods viz. fruit syrups etc. as the assessee is also engaged in the manufacture of other fruits based products like Jam, Jelly, Chutney where fruits are basic ingredients. 6.2.5 From the case record and the evidences produced by the appellants, we are not persuaded to hold that the subject goods are e .....

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which may or may not be preceded either by crushing or grinding or by treatment with cold and hot water with steam. The Explanatory Notes to HSN for Chapter Heading 20.09 mentions that the item (fruit juices of this heading) retain their original character of fruit or vegetable juice and said items may contain other substances like sugar other sweetening agents preservatives and standardising agents. The Explanatory Notes to HSN for this Chapter Heading 2009 also makes a mention that if normal .....

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0 (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, .....

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aking non-alcoholic beverages. 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. 2106904 .....

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unit container and do not bear any brand name; both these conditions have to be collectively fulfilled. The point of contention here is branding of the goods ; the appellant claims that goods were unbranded whereas the Revenue says that there was no sufficient evidence produced by the appellant to prove that the goods were unbranded. 6.3.2 Considering facts and the submissions of both sides, we remand the case back to the original adjudicating authority for decision afresh on this issue within .....

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bearing the brand name (for claiming the benefit of the Notification No. 3/2005), have been fulfilled. There is clear finding that goods are in unit container. The appellants say that the goods were in unit container up to 28.2.2005. Further from the facts on record for the period after 29.2.2005 it is not proved that the goods were not bearing the brand name. It means that the assessee/appellants in any case are not entitled to the benefit of the Notification No. 3/2005 for these goods up to 28 .....

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