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Ashok Grih Udyog Kendra Ltd., Shubham Goldiee Masale (P) Ltd. Versus Commissioner of Central Excise, Kanpur

2016 (10) TMI 133 - CESTAT ALLAHABAD

Classification - Jaljeera - Held that:- the ruling by Hon’ble Apex Court in the case of Commercial Tax Officer Vs. Jalani Enterprises [2011 (3) TMI 311 - SUPREME COURT OF INDIA] has held that Jaljeera is nothing but a Masala packed into packets of different nature. We have also gone through the chapter note 3 of chapter 9 of schedule to Central Excise Tariff Act, 1985 in respect of the law prevailed till 01-03-2005. In respect of the tariff which is with effect from 01-03-2005, the same contents .....

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gned orders, duty is confirmed on Jaljeera treating them as classifiable under 21.08 the demand does not sustain. - Classification - Dehati Buknoo and Milk Masala - Held that:- the issue is now settled that Dehati Buknoo (Hazmi), Milk Masala are classifiable under 09.03 or similar such classification subsequent to 01-03-2005 and since the impugned orders have confirmed the demand treating Dehati Buknoo and Milk Masala under 21.08, the said demand does not sustain. - Demand aolngwith int .....

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of the same. The reason for not relying on the said statement that it was not manufacturing Gulabjamun Mix is not forthcoming in the Show Cause Notice nor in any of the earlier Show Cause Notices. Therefore, none of the Show Cause Notices involved in the impugned orders are sustainable for demand of duty in respect of Gulabjamun Mix under Central Excise Act, 1944. - Decided partially in favour of appellant - APPEAL Nos. E/2835/2011 & 2861/2011 EX[DB] - Final Order No. 70848-70849/2016 - Dated:- .....

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together for decision. 2. In respect of, Shubham Goldiee Masale (P) Ltd., who are manufacturer of different types of Masale such as Jaljeera, Dehati Buknu (Hazmi), Diabetic Masala, Milk Masala, Shikakai Powder etc., are also involved in sale of Gulabjamun Mix (Only Trading). They were issued with show cause notices as detailed in Table below:- Table SCN Dated Period Demand (Rs.) (i) 04.08.06 01.01.02 to 31.03.05 3,14,45,768/- (ii) 16.01.07 01.04.05 to 31.03.06 1,47,87,417/- (iii) 06.02.07 01.04. .....

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iv) Diabetic 49,352.55/- (v) Gulabjamun mix (only trading) 5,28,45,091.63/- (vi) Shikakai Powder 144,475/- 6,17,96,163/- The Show Cause Notice dated 26-02-2006 stated that it was relied upon document viz. letter dated 23-01-2009 received from Shubham Goldiee Masale (P) Ltd. on 28-01-2008 which is listed as (RUD 04) along with Annexure-A. Annexure-A is the details of the goods cleared during the period from 1st April, 2008 to 30th September, 2008 by Shubham Goldiee Masale and it was stated in the .....

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unts to manufacture. Therefore, Shubham Goldiee Masale (P) Ltd., were called upon to show cause as to why the various Masalas manufactured by them should not be classified under chapter heading 21.08/21.06 and Central Excise duty as stated in show cause notices stated above should not be demanded from them. In addition, there were other proposals for penalty and interest etc. All the Show Cause Notices were adjudicated through Order-in-Original No. 18/Commissioner/2011 dated 29-07-2011 wherein t .....

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, they were issued with two Show Cause Notices, one dated 24-12-2001 covering a period from 01-12-1996 to 31-03-2001 demanding of ₹ 59,53,150/- by invoking the proviso Sub-section 1 of Section 11A of the Central Excise Act, 1944. Both the Show Cause Notices had a proposal to classify various Masalas manufactured by Ashok Grih Udyog Kendra Ltd. under Chapter Sub-heading 2108 as against classification claimed by Ashok Grih Udyog Kendra Ltd., under chapter sub heading 09.03. Another Show Caus .....

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in 09.03 by Ashok Grih Udyog Kendra Ltd. Both the above stated Show Cause Notices were taken together for adjudication. They were adjudicated through Order-in-Original No. 17/Commissioner/2011 dated 29-07-2011. In the said adjudication order the Original Authority has classified Jaljeera and Dehati Buknoo called as Hazmi under chapter heading 21.08 for period before 01-03-2005 and in sub heading 2106 after 01-03-2005 and confirmed the demand totaling amounting to ₹ 1,19,73,817/- for the pe .....

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rih Udyog Kendra Ltd., preferred an Appeal No. E/2835/2011 against the Order-in-Original 17/Commissioner/2011 dated 29-07-2011. In the appeal of Ashok Grih Udyog Kendra Ltd., there are only two Masalas involved, which are Jaljeera and Dehati Buknoo (Hazmi). In the appeal preferred by Shubham Goldiee Masale (P) Ltd., the goods involved are Jaljeerar, Dehati Buknoo (Hazmi), Milk Masala, Diabetic Masale and Gulabjamun Mix which is involved only in trading and Shikakai Powder. 4. The grounds of appe .....

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ading 09.03 includes products commonly known as Masalas . Therefore, the classification of Jaljeera should be under 09.03(b) in respect of Hazmi i.e. Dehati Buknoo and Milk Masala, the issue was settled by ld. Additional Commissioner of Central Excise, Kanpur, through Order-in-Original No. 39-CEX/ADC/2010 dated 19-08-2010 wherein ld. Additional commissioner has decided that the classification of the product Dehati Buknoo and Milk Masala to be falling under Chapter Sub-heading 09.03 and the said .....

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of Section 11A (1) of Central Excise Act, 1944 in respect of Gulabjamun Mix. Therefore, the demand confirmed by Original Authority in respect of Gulabjamun Mix is contrary to law. 5. In respect of Ashok Grih Udyog Kendra Ltd., the grounds of appeal in respect of Jaljeera and Dehati Buknoo (Hazmi), are same as stated above by M/s Shubham Goldiee Masale (P) Ltd. 6. The ld. Counsel has reiterated the above stated grounds of appeal and further stated that they are not contesting the demand confirme .....

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t would indicate that most of the items used in the manufacture of Jaljira are nothing else but spices. They are grinded and mixed. When spices are grinded and mixed, it gives rise to a new product, which is a mixed Masala. Different ingredients are used in preparation of Masala after grinding and mixing several ingredients and when they are so grinded they lose their own identity and character and a new product separately known to the commercial world comes into existence. Sales tax is levied o .....

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then there is no reason to take resort to the residuary entry. There is no doubt that Jaljira is a drink. The contents of Jaljira is put into water and taken as digestive drink but when we look into the manner and method of preparation of the product Jaljira, we find that it is a mixture of different spices after grinding and mixing. Therefore, it is nothing but a Masala packed into packets of different nature/quantity and sold to the consumers. It would, therefore, for all practical purposes wo .....

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of chapter note 3 of chapter 9, is reproduced in supplementary notes. The said chapter note 3 indicated that chapter sub heading 09.03 covers goods commonly known as Masala and chapter note 3 indicates that Masala is classifiable under chapter sub heading 09.03. Therefore, we hold that Jaljeera is classifiable under chapter sub heading 09.03 during the period up to 01-03-2005 and the same is classifiable under chapter sub heading 09.10 for period subsequent to 01-03-2005. Since in both the impu .....

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