2018 (1) TMI 261

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..... the manufacture of preparations for lemonades or other beverages intend for use in the manufacture of aerated water. To prepare these preparations, the respondent receives the soft drink concentrate from the Coca-Cola entity. This soft drink concentrate is diluted and sugar syrup is added to it and this compound preparation is bottled and sold. Prior to introduction of the new 8 digit Central Excise Tariff w.e.f. 28.02.2005, the respondent classified these goods under chapter sub-heading 2108.10 of the Central Excise Tariff Act, 1985 and paid Basic Excise Duty @ 16% ad valorem under the first schedule to the Central Excise Tariff Act, 1985 and Special Excise Duty (SED) @ 8% ad valorem under the second schedule to the Central Excise Tariff .....

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..... chine. We find that the lower Authorities have not discussed the classification of the impugned product in terms of the various Chapter Notes, as mentioned above. The classification of BIB and heading 2106 90 50 in the 1st Schedule is not disputed. This heading is not figuring in the 2nd Schedule for the purpose of levy of SED. The Boards clarification dated 17/8/2006 relied upon by the lower authority states that preparations for lemonades and other beverages intended for use in the manufacture of aerated water are classifiable the Tariff Item 2106 90 50 in the 1st Schedule and under Tariff item 2106 90 19 in the 2nd Schedule to the Central Excise Tariff Act 1985 w.e.f. 28/2/2005. We find with this clarification the imposition of SED on BI .....

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..... n. Provisions of General Clauses Act were quoted by lower Authority. We find no possible application for the same in the present case. The impugned order has not analyzed the appellants contention with reference to the Chapter Notes of Chapter 21, Notes 1, 2 and 3 of 2nd Schedule to arrive at the proper finding. We find the impugned order as unsustainable in view of the above discussion. Accordingly, the appeal is allowed with consequential relief, if any. 5. Considering the fact that this Tribunal held that the impugned product have merit classification under tariff item 2106.9050 of first schedule, therefore, no SED is payable by the respondents, therefore, following the precedent decision in the case of Varun Beverages (Supra), we hold .....

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