TMI Blog2017 (4) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... , NEW DELHI] wherein the Tribunal was considering the classification of Nestle Milkmaid Kesar Kulfi Mix, Nestle Milkmaid whether falls under Chapter Heading 0404 or Chapter sub-heading 2108.90 after considering the entire gamut and also the ingredients in the product Nestle Milkmaid and Kulfi mix, Bench after considering the Explanatory note to HSN held that Nestle Milkmaid and Kulfi would fall under Ch. 04.04. If the Kulfi Mix which is a dry powder merits classification under CTH 0404, then “Kulfi” manufactured by appellant which is ready to consume would definitely merit classification under 0404. Appeal allowed - decided in favor of assessee. - E/3206/2005-Mum - Final Order No. A/93155/2016-WZB/EB - Dated:- 1-9-2016 - Shri M.V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the appellant that Kulfi is nothing but a product of milk which is heated till it reduces to a volume of 50%, flavour and sugar and various other ingredients are added to it and the same is frozen. It is also the submission that once the classification of the product kulfi falls under 0404.00, the rate of duty is nil hence there is no classification of exemption of small scale industries. On perusal of the records we note that the C.H. 0404 of the Central Excise Act is applicable in the case in hand as it is undisputed that the Kulfi is milk product and the manufacturing process of kulfi are explained by the appellant before the lower authorities is also not disputed. It is to be noted that the Tribunal was considering simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can have added sugar or other sweetening matter, flavourings, nuts, fruit or cocoa. Heading 04.04 states that the milk product may also contain added sugar or other sweetening matter. 10. Ingredients of the three products with which we are concerned do not contain any material, which will take the said product out of goods falling under Heading 04.04. The dried com starch in two products constitutes 3.7% by volume. Starch contents up to 5% will not take out the product from Heading 04.04. In other words, the presence of starch below 5% sugar, almond bits, pistachio bits or saffron bits cannot take the subject goods outside the purview of Heading 04.04. 4.2 In view of the foregoing, we find that the impugned order is unsustainable an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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