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TMI Blog2017 (5) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... Shake Mix (MSM), Soft Serve Mix (SSM), Coffee Cream and Cream packed, among others, is in appeal against Order-in-Appeal dated 19.04.2005, for the period 01.07.2001 to 10.08.2001, whereby the Ld. Commissioner have confirmed the classification of the products in question under Sub Heading 1901.19 of the CET Act as food preparation of the goods of heading No.4.01 to 04.04 of the tariff, rejecting the classification adopted by the appellant in Sub Heading 04.04. 3. Heard the parties. 4. The Ld. counsel for the appellant have stated that the issue is no longer res-Integra and the same issue between the same parties have travelled earlier to the apex Court, whereby the apex court had remanded the matter to this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Cocoa calculated on a totally defatted basis, not elsewhere specified or included. The preparation of this heading may be distinguished from the products of Headings 04.01 to 04.04 in that they contain, in addition to natural milk constituents other ingredients not permitted in the products of those earlier headings. These products will go to the sub-heading 1901.19 only if it contains in addition to natural milk constituents, other ingredients, which are not the products of Chapter 4. In the present case except the stabilizers, which are added in the milk is sugar which is stabilizing agent and dextrose which is also sugar. There are only addition of stabilizers. The dispute of the department is that stabilizers are emulsifiers and these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading 0404.90 of the Central Excise Tariff. The other two products i.e. Coffee Creamer and cream packed are also classified under sub-heading 0404.904. There is no reason given in the impugned order for classifying the product under Chapter 19. This is not disputed by the Revenue. We, therefore, set aside the order of the Commissioner and classify the products under sub-heading 0404.90, The appeal is accordingly allowed with consequential relief, if any, to the appellants." 5. Being aggrieved the Revenue preferred Civil Appeal No.4337 of 2006 before Hon'ble Supreme Court and vide Final Order dated 03.09.2015, the apex court have upheld the classification as held by this Tribunal and rejected the appeal of the Revenue. The operative pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugar or other sweetening matter In or in relation to the manufacture of which any process is ordinarily carried on with the aid of power: 0401.11 Flavoured milk, whether sweetened or not, put up in Nil unit containers and ordinarily intended for sale 0401.12 Skimmed milk powder, specially prepared for feeding infants 0401.13 milk powder, other than powder specially prepared for feeding infants, put up in unit containers and ordinarily intended for sale. 0401.14 concentrated (condensed) milk, whether sweetened or not, put up in unit containers and ordinarily intended for sale. 0401.19 Other 0401.90 Other" It is clear from the aforesad that al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, it is argued that stabilizer is not mentioned therein and therefore, addition of stabilizer while making the aforesaid preparation would take it out from Heading 04.01. Thus, it needs to be determined as to whether the addition of stabilizer would make it a food preparation and therefore, it would no more remain dairy produce and would be covered under Heading 19.01. Learned counsel for the appellant drew our attention to the ingredients of stabilizers which are used in the product in question and these are carbox methyl cellulose, gaur gum, carageenam, monoglycerides, di-glycerides, tri-glycerides, etc. It is argued that none of these substances are common to substance mentioned in Note 4, reproduced above, and therefore, addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chemical equilibrium, act as antioxidants, keep pigments and other compounds in emulsion form, or prevent the particles in a colloidal suspension from precipitating." Insofar as Chapter Note 4 on which reliance is placed by the learned counsel for the appellant is concerned, we are of the opinion that even that would not advance the case of the appellant. It has to be noted that the description given there is open ended in as much as the Chapter Note itself uses the expression "inter alia". Further, while mentioning the products which would be covered under the said Chapter Heading 04.04, and stating about the additions which could be made, the crucial words are "whether or not". Therefore, the additives which can be added while making ..... X X X X Extracts X X X X X X X X Extracts X X X X
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