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TMI Blog2024 (11) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... ortable coarse pieces of pulses " the impugned product" namely offspecs pulses, tukdi of pulses- broken pulses, bhushi/ bhuki of pulses mixed with impurities/ pulses waste( not of export quality) were cleared into Domestic Tariff Area. It is this waste product, classification of which is involved in this appeal. As per the appellant the classification of the said goods is under chapter heading 0713 which is eligible for duty exemption under Notification No. 12/2012 (Sr. No. 21). 1.1 The case of the Department is that the classification of the said goods is under sub heading 23025000. Accordingly, the appellant was forced to pay the duty. Consequently, the appellant paid the duty under protest and thereafter a show cause notice dated 20.09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries - 2016 (4) TMI 841 SC * Pepsico Holdings Pvt Ltd 2019 (4) TMI 320 TRI * Warner Hindustan Ltd-1999 (8) TMI 75 SC 3. Shri Sanjay Kumar, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the records. We find that the dispute in the present case is that whether the goods in question is classifiable under 2302 5000 as claimed by the department or under chapter heading 0713 as claimed by the appellant. To arrive at a conclusion on the classification, it is necessary to go through the rivel tariff entries, which are reproduced below: - Entry No. 0713 Heading No. H.S. Code ITC(HS) Code Des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds such as Bran, Sharps and others residues whether or not in the form of palates derived from the sifting, milling or other working cereal or of leguminous plants. That means it applies to the goods namely, cereals of leguminous plant. In the present case the waste arise from the pulses and pulses are not covered either as cereals or leguminous plant. Therefore, on this basis, it is clear that the appellant's product being a waste arise from the pulses does not cover under the tariff heading 2302. It is a settled legal position that irrespective of the position whether the assessee's claim of classification is right or wrong but if the classification proposed by the department fails than the entire proceeding is vitiated and no consequenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that 'communion wafers' are not normally made of or contain chocolates; however, no material is placed on record to support this contention. We, therefore, do not find any reason to discount the possibility of chocolate covered or chocolate filled 'communion wafers' being used in the ritual. 7. Learned Authorised Representative places reliance on the decision of the Hon'ble Supreme Court in Warner Hindustan Ltd v. Collector of Central Excise, Hyderabad [1999 (113) ELT 24 (SC)] to plead that the original authority should be permitted to attempt another alternative classification as the declared heading is not appropriate. That decision was handed down in the context of different classifications adopted by the original authority and the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arner Hindustan Ltd (supra) the Hon'ble Apex Court has given the following findings:- "Not much needs to be stated to allow this appeal. 2. The appellant manufactures what it calls "Halls Ice Mint tablets". It classified these tablets as "Ayurvedic medicines" under Heading 3003.30 of the Central Excise Tariff. It was issued a notice to show cause why these tablets should not be classified under Tariff Heading 3003.19 as "patent or proprietary medicines". The Assistant Collector, after hearing the appellant, held that the tablets were patent or proprietary medicines classifiable under Heading 3003.19. In appeal by the appellant, the Collector of Central Excise (Appeals) held that the tablets were Ayurvedic medicines classifiable under He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he opportunity to place on record such material as was available to it to establish the contrary. It is impermissible for the Tribunal to consider a case that is laid for the first time in appeal because the stage for setting out the factual matrix is before the authorities below. 3. In the result, the appeal is allowed. The judgment and order of the Tribunal under appeal is set aside and the appeal filed by the Excise authorities before the Tribunal is dismissed. It shall be open to the Excise authorities to issue to the appellant a notice to show cause why the tablets should not be classified as items of confectionery under Heading 17.04, provided it is open to the Excise authorities to do so in law. No order as to costs." From the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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