TMI Blog2017 (3) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... of 10 Kgs./15 Kgs. which are mostly used in clearance for wholesale. It is also not in dispute that the goods have been cleared to ICDS for free supply and not for sale. Hence, the most appropriate classification for these goods is 2107.99. We note that the goods of 2107.99 were chargeable to ‘nil’ rate of duty as per tariff rate up to 28.02.1994 and with effect from 01.03.1994 the goods enjoyed ‘nil’ rate of duty under various N/N. 6/92-CE dated 01.03.1992 and 2/94 dated 01.03.1994. As regards wheat puffs, clearances made to ICDS in jumbo packs cannot be considered as clearance in unit containers. Consequently, the classification of the product Wheat Puff will be most appropriate under CETH 1904.90 and not under 1904 10. It is necessary for the issue to go back to the adjudicating authority for re-quantification of such demand of excise duty in respect of clearances of both the products made in unit containers to the agencies other than government (ICDS) - appeal allowed by way of remand. - E/1343, 1344, 1362/2008 - A/52515-52517/2017-EX[DB] - Dated:- 24-3-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. V. Padmanabhan, Member (Technical) Shri V. Lakshmi Kumara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions and appeared before the adjudicating authority on 20.12.2007. The adjudicating authority, after considering the submissions, issued the impugned order in which Central Excise duty demand stands confirmed against the assessee to the extent of ₹ 2,06,10,579/- along with imposition of penalty of equal amount besides ordering payment of interest. Penalties of ₹ 5 Lakh each have been imposed on Shri K.K. Garg and Shri A.K. Garg, Directors as well as ₹ 2 Lakh on Shri D.K. Garg, Director. Land and building and plant and machinery were also ordered for confiscation which were allowed to be redeemed on payment of redemption fine of ₹ 5 Lakh. The present appeals have been filed by the assessee as well as Shri A.K. Garg and Shri D.K. Garg, Directors which are being disposed by this common order. 3. With the above background, heard Shri V. Lakshmikumaran and Shri Hemant Bajaj, ld. Counsels appearing for the appellants and Shri R.K. Manjhi, ld DR appearing for the Revenue. 4. The assessee is engaged in the manufacture of Wheat Puff as well as Soya nuts. The dispute is with reference to the classification as well as rate of duty applicable to these two produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Sterlised or pasteurized miltone Nil - Other : Nil 2107.91 -- Put up in unit containers and ordinarily intended for sale 15% 2107.99 -- Other Nil The assessee has sought the classification under CETH 2107.99 (other) whereas the department has sought classification under 2107.91, considering the goods as packed in unit containers and ordinarily intended for sale. We note that the clearances made for ICDS scheme were in bulk packs of 10Kgs. / 15 Kgs. sizes. Revenue has considered these packings as unit containers to decide the classification under 2107.91. They have also considered the goods as sold to the implementing authority of ICDS even though these are delivered to Anganwadis on free distribution and specifically mentioned on the packing as Not for Sale . The contra claim of the assessee is that the goods have been supplied to the State government (ICDS) for free supply and were not meant for sale. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 17/1995 with effect from 16.03.1995 as Soya based food preparation for infant use. They have made an alternate submission that in the event of department seeking to classify the goods under 1904, it is liable for classification under 1904 90 and not under 1904 10 as ordered by the ld. Commissioner. The relevant CETH entries are reproduced below:- Head- ing No. Sub Heading No. Description of goods Rate of duty 19.04 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, corn flakes); cereals, other than maize (corn), in grain form, pre-cooked or otherwise prepared 1904.10 - Put up in unit containers and ordinarily intended for sale 15% 1904.90 - Other . The claim of the assessee is that only a very small percentage of product is cleared in unit containers with brand name, whereas, bulk of the clearances were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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