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2017 (2) TMI 669 - CESTAT BANGALORE

2017 (2) TMI 669 - CESTAT BANGALORE - TMI - Benefit of N/N. 6/2002-CE dated 1.3.2002 - paneer darbari - basmati rice and dal tadka - basmati rice and rajma masala - classified under heading 2108.99 of CETA, 1985 or not? - denial of exemption on the ground that products are not similar to the products viz., Mithais, Misthans, Namkeens, Bhujia, Mixture, etc., for which the exemption was made available under the said Notification - Held that: - Since paneer darbari is a product of different materia .....

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packed products, which are in turn packed and sold in a single packet, for which a single MRP is affixed - In terms of Rule 3(b) of the Interpretative Rules, classification of set has to be made in accordance with that attribute which, the components taken together, can be regarded as conferring the set as a whole its essential character. We note that basmati rice is packed either with dal tadka or rajma masala with an intention of consuming the two together as a meal. Since the essential chara .....

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partly in favor of assessee - matter on remand for the purpose of quantification of demand - penalty set aside. - E/470 -471/2007-DB - Final Order No. 20227 - 20228 / 2017 - Dated:- 9-2-2017 - Shri S. S. Garg, Judicial Member And Shri V. Padmanabhan , Technical Member Mr. B. V. Kumar, Advocate For the appellant Mr. Parashiva Murthy, AR For the respondent ORDER Per V. Padmanabhan The appellants are manufacturers of excisable goods viz., Navarathan kuruma, Mixed Vegetable Curry, Alu Mutter, Dal Ma .....

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ducts manufactured and cleared by the appellants, though classifiable under CSH 2108.99 of CETA, 1985, were not entitled to the benefit of Notification No.6/2002-CE dated 1.3.2002, vide Sl. No.14, inasmuch as the impugned products are not similar to the products viz., Mithais, Misthans, Namkeens, Bhujia, Mixture, etc., for which the exemption was made available under the said Notification and therefore, the said exemption claimed by the appellants is irregular. On the basis of the above allegati .....

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1.1.2005 under Section 11A(2) of the Central Excise Act, 1944 and interest thereon should not be charged on them under Section 11AB ibid. iii. A penalty should not be imposed on them under Rule 25 of Central Excise Rules, 2002. For the subsequent period covering 1.2.2005 to 18.9.2005, four more show-cause notices were issued by the Department on the same lines as above. The initial show-cause notice dated 8.3.2005 was finalised vide the Order-in-Original No.25/2005 dated 14.9.2005 in which the l .....

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o have considered the alternative prayer for reclassification of the item under Chapter sub-heading 2001.10 and also should have considered the claim of benefit of Notification No.6/2002 dated 1.3.2002 vide Sl. No.9. The Commissioner has also not considered the aspect pertaining to treating the duty as cum duty. Therefore, we are of considered opinion that the impugned order is required to be set aside and the matter remanded for de novo on all points . In terms of the above said order of Hon bl .....

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he above Orders-in-Original, the Commissioner has decided as follows: (i) The edible preparations of 13 different types were classifiable under Chapter Subheading 2001.10 during the period of demand and were eligible for full exemption under Sl. No.9 of Notification No.6/2002 dated 1.3.2002. (ii) In respect of other edible preparations such as paneer darbari , basmathi rice and dal tadka , basmati and rajma masala were classifiable under subheading 21.08 (currently 2106 90 99) and were not entit .....

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urthy, learned AR for the Revenue. 3. The learned advocate reiterated the grounds of appeal which are summarised below: (i) The product paneer darbari is predominantly a preparation of vegetables with some percentage of paneer and other substances. He relied upon a copy of the composition certificate issued by the appellant s own laboratory to the effect that the composition of the product paneer darbari is as follows: 58.69% - Vegetables 3.40% - Water and 37.01% - Others He argued that since th .....

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dvocate submitted that these are in the nature of combo packs consisting of two separately packed products which are further packed into a single pack and sold as such. He argued that since these combo packs consists of two different products classifiable under two different chapter subheadings, these should be classified under their respective chapter headings and have to be assessed independently in terms of Rule 3(b) of the Interpretative Rules. On the above basis, he submitted that basmati r .....

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of 285 grams which are sold by the appellants at an MRP of ₹ 35/-. Since the combo pack has MRP of ₹ 45/-, he submitted that the packet of basmati rice should be assessed by taking MRP as ₹ 10/- (Rs.45/- minus ₹ 35/-). In this connection, he relied upon the decision of the Tribunal in the case of G.S. Enterprises vs. CCE: 2002 (145) ELT 387 (Tri.-Del.). (iv) Learned advocate, however, submitted that they are not pursuing the issue of classification of the following produc .....

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neer, fresh cream, tomato puree, white butter, spices, salt, sugar, etc. The predominant composition is as follows: 58.69% - Vegetables 3.40% - Water and 37.01% - Others 5.1 In terms of Rule 2(b) classification of goods consisting of more than one material or substance shall be in accordance with the principles contained in Rule 3. Rule 3(b) concerns with mixtures and composite goods consisting of different materials and reads as follows: mixtures, composite goods consisting of different materia .....

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2(b) read with Rule 3(b) of the Interpretation Rules of the Tariff. 5.3 Consequently, the product paneer darbari will be eligible for the benefit of exemption at Sl. No.9 of the Notification 6/2002-CE dated 1.3.2002. 6. Next, we turn to the other products under dispute i.e., basmati rice and dal tadka and basmati rice and rajma masala . These products are cleared in the form of combo packs which consists of two separately packed products, which are in turn packed and sold in a single packet, for .....

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sential character. We note that basmati rice is packed either with dal tadka or rajma masala with an intention of consuming the two together as a meal. Since the essential character of the meal arises out of basmati rice (the subji is eaten along with the rice), we are of the view that the combo pack has to be classified under Heading 21.08 (2106 90 99 for subsequent period). It has already been held in the impugned order that such products will not be eligible for the benefit of exemption under .....

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