TMI Blog2017 (9) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... lassifiable under Tariff Item No. 11052000 - appeal allowed - decided in favor of appellant. - Appeal No. E/3313 - 3314/2009-EX [ DB ] - Final Order No. 70806-70807/2017 - Dated:- 9-8-2017 - Mr. Anil Choudhary, Member ( Judicial ) And Mr. Anil G. Shakkarwar, Member ( Technical ) Shri M. Chandrasekharan (Senior Advocate) Shri S. Sunil (Advocate) for Appellant Shri Rajeev Ranjan (Joint Commr.) AR Shri Sandeep Kumar Singh (Dy. Commr.) AR for Respondent ORDER Per : Anil G. Shakkarwar The above stated two appeals are arising out of common impugned Order-in-Original No. 34/Commr./M-II/2009 dated 23/10/2009 passed by Commissioner of Central Excise, Meerut-II and therefore they are taken together for decision. 2. Brief facts of the case are that the appellants were engaged in the manufacture of the Paper based decorative laminates, Formaldehyde, Post form particle Board etc. It was noticed by Revenue during audit that appellants were also engaged in the manufacture of a product called by appellants as Potato flakes and the same were being cleared without payment of Central Excise duty. Therefore, Assistant Commissioner of Central Excise, Division Hapur, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o show cause notice that Chapter note 1 (d) of Chapter 11 is to the effect that the said Chapter 11 does not, cover vegetables prepared or preserved of heading 2001, 2004 or 2005 and that heading 2005 refers to other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen other than products of heading 2006 and that heading 2006, covers vegetables, fruits, nuts, fruit-peal and other parts of plant, preserved by sugar and further submitted that Chapter Note 3 of Chapter 20 specifically provides that heading 2005 covers only those products of Chapter 7 or of heading 1105 or 1106 which have been prepared or preserved by process other than those referred to in Note 1 (a) of the same chapter and the said Note 1 (a) of Chapter 20 provides that Chapter 20 will not cover vegetables, fruits or nuts, prepared or preserved by the processes specified in Chapter 7, 8 or 11. They further submitted that the processes specified in Chapter 7 are chilling, freezing, provisionally preserving by use of Sulphur-dioxide or brine and drying. Further the processes included in Chapter 8 are related to fruit and nuts, peals of citrus fruits or melons. They further submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufactured by the appellant were liable to be classified under Tariff Item No. 20052000 and that the classification claimed by appellant attract nil rate of duty and the difference between nil rate and rate of duty applicable as per classification under Tariff Item No. 20052000 was ₹ 51,33,790/- for the period under dispute. The said impugned Order-in-Original has confirmed the demand and imposed equal penalty. The original authority ordered the appellant to pay interest on the confirmed demand. Further original authority has imposed a penalty of ₹ 3 lacks on Shri Yogendra Verma, Deputy Manager. Aggrieved by the said order both M/s. Century Laminating Co. Ltd. and Yogendra Verma are before this Tribunal. 3. Heard Learned Counsel Shri M. Chandrasekharan senior advocate with Shri S. Sunil advocate on behalf of both the appellants. The Learned Counsel has taken us through the chapter notes of Chapter 11 and chapter 20 of Central Excise Tariff Act, 1985 and the processes specified in Chapter 7, 8 and 11. The Learned Counsel has submitted that in view of Rules of interpretation of Tariff the question of examining the comparative applicable classification will arise only wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying, milling, flaking, subjecting them to result in flour, powder, pellets, flakes, granules and roasting. He argued that it has been accepted in the process of manufacture stated in Para-28 of the Order-in-Original that the goods are subjected to milling also known flaking whereas the process indicated therein does not have any process to come to a conclusion that Potato Mash was manufactured and flaking is covered under Chapter 11 and therefore as per the said two chapter notes of Chapter 20 the present goods cannot be covered under heading 2005 of schedule to Central Excise Tariff Act, 1985. 4. Heard the Learned AR for Revenue. The Learned AR has submitted a report dated 22/07/2016 submitted by Assistant Commissioner Review of Central Excise (Hapur) Commissionerate. He has further submitted that the samples of raw materials being used by the appellant were sent for chemical examination in Central Revenue Control Laboratory and further contended that the test results indicate that preservative of the goods manufactured and therefore it is rightly classified under Chapter 20052000. 5. Considered the rival contentions and perused the record alongwith chapter note of Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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