TMI Blog2019 (3) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... s other Sweet Meat are being sold in market after packing. The intention of packing these mithais / misthans is to preserve their freshness and save them from any contamination. But, this does not mean that only if the Sweet Meats are sold openly in sweet shops would classify as Sweet Meat and if sold in packaged form would change their nature to ready to eat packaged food . The CBEC vide Circular No. 841/18/2006 CX dated 6.12.2006 has clarified that even if same items fall under two entries of the notification, the exemption of NIL rate of duty would be available to goods covered by Sl. No. 29 of Notification No. 3/2006-CE dated 1.3.2006 even when the said goods are also covered by Sr. No. 30. The products not containing cocoa are eligible for exemption as sweet meat . Coming to the classification of the products containing cocoa, the Chapter Note 6 to Chapter 21 clarifies that Sweet Meats, commonly known as only Misthans , irrespective of their ingredients, would be classified under Ch. 21 only - both types of cereal bars i.e those product not containing cocoa as well those containing cocoa would classification under 21069099 as Sweet Meat and are eligible for exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hai, Namkeens, Bhujia, Mixture and similar items are also known in all parts of the country and are easily available. The Appellant has mentioned the product as Chikki type cereal sweet meat bars. Chikki in common parlance is a sweet generally made of roasted groundnut / til sesame) or such other nuts mixed with jiggery, which is not similar to the Rite bite Nutrition bars. Further, that the product containing cocoa is classified under tariff sub-heading 18069090 and liable to duty under said tariff heading. In case of products not containing cocoa, it was contended that the bar is packed in a wrapper containing details of MRP, ingredients, manufacturing date, net weight, batch number, and period within which the product is to be consumed. That the said bars are not Sweet meat and packed in sealed containers and are ready to eat packaged food and even though classifiable under chapter sub heading 2106 90 99 but are liable to 8% duty in terms of Sr. No. 30 of Notification No. 3/2006-CE dated 01.03.2006 as Ready to eat packaged food . The first Show Cause Notice dt. 09.10.2015 demanded duty for the period from September 2010 to August 2015 by invoking extended period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch itself shows that by generic meaning the goods in question are mithai /misthans or similar products. He draws our attention to the affidavits of various dealers submitted before the adjudicating authority that the goods are known and sold in the market as sweet meat only. He has also produced copy of F-Forms issued by Sales Tax Authorities as per VAT provisions which shows that the goods are sweet meat. He also draws our attention to the sample copy of invoices / wrappers/ competitors wrappers/ showing that the goods are sold as sweet meat only irrespective of its contents; it is submitted that Revenue has not given any evidence that the goods are sold as Chocolates or preparation of cocoa; there is no evidence that non-cocoa based cereal bar is being sold by any name other than sweet meat . He submits that out of many ingredients, cocoa solids / cocoa powder is one of the ingredients in a very small proportion. He relies upon the lab test done for the composition and analysis for food of 13 products which show that the cocoa content is 0.56% for Choco Delite , 0.42% for Work out Classic , 0.33% for Easy Slim , 0.51% for Professional Choco Bem , 0.13% for Rite Bite Max ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that mere packing of Misthan or Mithai would not remove the same from heading 21069099 to make it ready to eat packed food . He relied upon Chapter Note 6 of Ch. 21 of the Central Excise Tariff, which reads that Tariff item 2106 90 99 includes sweet meat commonly known as Misthans or Mithai or called by any other name; they also include products commonly known as Namkeens , mixtures , Bhujia , Chabena or called by any other name. Such products remain classified in these sub-headings irrespective of the nature of their ingredients . He also relies upon Board Circular No. 841/18/2006-CX wherein it was stated that the exemption of NIL rate of duty would be available to goods covered by Sl. No. 29 of Notification No. 3/2006-CE dated 1.3.2006 even if the goods are also covered by Sl. No. 30. That once the goods fall under category of Sweet Meat, then irrespective of whether they are packed or not, still they would be classified under Sl. No. 29 only; the Department does not dispute that the goods not containing cocoa are not classified as Sweet meat and fall under 21069099. Learned Counsel also demonstrates the various samples of Sweet meat available in the market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department was in knowledge of the manufacturing process, ingredients and nature of product since year 2006 07. He submits that in view of such communication, the demands are squarely time barred. He relies upon the following judgments: i) COMM. Vs Adani Gas Pvt Ltd 2017 (356) ELT 541 (Guj) (7) ii) Suvidha Eng. Vs CCE, Noida 2013 (32) STR 735 (Tri) iii) Neminath Fabrics Vs CCE, Surat I 2009 (234) ELT 525 (Tri) 6. Per contra, Ld. AR appearing for the Revenue submits that in case of products containing cocoa, the same cannot be termed as Sweet meat as Chapter 21 is for miscellaneous edible preparations to cover solid edible preparations; that CETH 2106 is last resort of classification for the edible preparations which cannot classified under any other edible preparations, Central Excise Tariff Heading No. 21069099 covers only those sweet meats which are not covered by other entries of section; that in terms of Chapter Note 2 to Chapter Note 18 the food preparations containing cocoa are covered under the heading 1806; that even if the Appellant s products were held to be sweet meat under the central sales tax that cannot be used as a guide for classifying the goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold as Sweet Meat in market. The invoices issued by M/s Naturell for sale of the products in dispute specifically mention the product description as Sweet Meat. Even similar products of the competitors which are sold in market are known in trade circle and in mind of the consumers as Sweet Meat, as evidenced by wrappers of such products annexed to the appeal memo. It is not in dispute that the list of ingredients along with sweetness of the product puts the product in category of sweets only. The Appellant has also produced the sample of Sweet Meat, i.e. Gajak sold in market coated with cocoa and sample of their own products and test report of their own products, which shows that cocoa content in their coated product, is less than 1%. The adjudicating authority has held that the product not containing cocoa is not Sweet Meat as Chikki is Sweet Meat which is made up of Til and Jaggery, whereas the product contains other ingredients. We find that it is not necessary that a product to be held as Chikki , the same should contain sugar or jaggery. In new development of products instead of sugar or jaggery, items like honey, cane sugar, liquid glucose and other items are used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans is to preserve their freshness and save them from any contamination. But, this does not mean that only if the Sweet Meats are sold openly in sweet shops would classify as Sweet Meat and if sold in packaged form would change their nature to ready to eat packaged food . The CBEC vide Circular No. 841/18/2006 CX dated 6.12.2006 has clarified that even if same items fall under two entries of the notification, the exemption of NIL rate of duty would be available to goods covered by Sl. No. 29 of Notification No. 3/2006-CE dated 1.3.2006 even when the said goods are also covered by Sr. No. 30. We find that in case of Hindustan Lever Ltd 2005 (189) ELT 53, the facts were quite similar. The Tribunal held as under:- 2.1 After hearing both sides considering the issues it is found - (a) We find that the term sweet meat used in the notification is a generic term would cover all sorts of edible preparations not elsewhere specified, falling under heading 2108.99 which is a sort of repository of residual entry for edible preparation. The classification of the said goods under 2108.99 is not in doubt or contest. Sweet edible preparation containing 23% sugar in ready to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, as reported in 2006 (197) ELT A191 (SC). We thus are of the view that the products not containing cocoa are eligible for exemption as sweet meat . Coming to the classification of the products containing cocoa, we find that Chapter Note 6 to Chapter 21 clarifies that Sweet Meats, commonly known as only Misthans , irrespective of their ingredients, would be classified under Ch. 21 only. The adjudicating authority has classified the cereal bars containing cocoa under Tariff Item 1806, which pertains to classification of chocholates and other food preparations containing cocoa. We have already held that the cereal bars not containing cocoa are classifiable under Tariff Heading 2106 90 99, which even the adjudicating authority has also held so. Admittedly, once the goods are classified under 2106 90 99 then even the addition of cocoa would not change the classification of such goods to 1806 9090. The products do not lose their identity as sweet meat. Chapter 18 deals specifically with cocoa and other food preparations containing cocoa. The Tariff item 1806 starts with chocolate and other food preparations containing cocoa, even if the goods predominantly being sweet meats, the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded in Tariff Item 2302 being preparation of a kind used in animal feeding including dogs and cats food. We agree with the conclusion of the Tribunal that even food supplements like the products of the respondents which are used in animals feeding would fall under the Heading 2302 and, therefore, we do not find any merit in this appeal. While affirming the decision of the Tribunal, this appeal is dismissed with no order as to costs. 9. In case of Vasu Pharmaceuticals Pvt Ltd 2017 (350) ELT 166 (Guj), the Hon ble High Court held, as under:- 33. Another aspect of the matter is that even while classifying the product under Chapter 33, the department has classified the same under sub-heading 3305.99, that is, Other instead of [sub-heading] 3305.10, that is, Perfumed Hair Oils . A perusal of the show cause notice shows that it is the case of the department that 80% of the total ingredients are Til Oil and Coconut Oil which are fixed vegetable oils and can be used for the purpose of Hair Oil . Despite the aforesaid position, even after holding the product to be classifiable under Chapter 33, the authorities have held the same to be classifiable under the categor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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