TMI Blog1990 (3) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the label is Annexure PI to the petition. 3. From 1-3-1983 to 28-2-1989, skimmed milk powder was exempted from excise duty. During that period excise duty was sought to be levied on the item in dispute and ultimately the petitioner succeeded that excise duty was not leviable. (See order Annexure P7). Although the contention of the petitioner was that its product was partly skimmed milk and since even on skimmed milk no excise duty was leviable, the following observations were made in the concluding part of the order: "There is no distinction in the tariff itself between the completely and partly skimmed milk." In spite of the aforesaid finding, the product in question was classified under sub-head 0401.13. Since no excise duty was levied on the product in dispute, it was not necessary for the petitioner to go up further in appeal on the finding that the product in dispute was covered by sub-head 0401.13. 4. When with effect from 1-3-1989, skimmed milk powder was subjected to excise duty, by making amendment in the sub-heading 0401.13, the petitioner immediately filed classification list on 3-3-1989 saying that its product was covered by sub-heading 0401.19, the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff itself, namely partially skimmed milk or completely skimmed milk. 6. When we go to the Heading 04.01 of the Central Excise Tariff, it has 5 sub-headings, out of which first two and the last are not subject to any excise duty, whereas the 2nd and the 3rd sub-headings are subject to excise duty. Skim milk powder specially prepared for feeding infants is exempted from excise duty. (See sub-heading 0401.12). However, under sub-heading 0401.13, skimmed milk powder is subjected to 15% duty which we are informed has been reduced to 10 per cent. While in the heading of the Excise Tariff, there is reference of partially skimmed milk, in the sub-heading, there is no separate sub-clause for partially skimmed milk. While the argument of the department is that the partly skimmed milk also falls in the sub-heading 0401.13, the case of the petitioner is that it falls in sub-heading 0401.19, that is, 'Milk of kinds other than shown above this clause'. To put it more precisely, the case of the petitioner is that since partially skimmed milk is not specifically covered by sub-heading 0401.13, it will necessarily fall under sub-heading 0401.19, that is, the residuary clause 'other', and, since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Skimmed Milk Powder and it provides that skimmed milk powder shall not contain more than 1.5 per cent milk fat. Sub-clause 11.02.16 describes the meaning of partly skimmed milk powder and it provides that such a product shall contain fat more than 1.5 and less than 26.0 per cent. Under sub-clause 11.02.14 Milk powder shall contain milk fat not less than 26 per cent. 11. Rule 37 of the Rules provides that a label shall not contain a false or misleading statement consisting the food contained in the package or the quality or the nutritive value etc. The meaning is that the label should contain the correct particulars of the contents regarding quality etc. Rule 42 of the Rules provides for the form of labels. Label at clause (f) has been provided for partly skimmed milk powder and label at clause (g) has been provided for skimmed milk powder. The contents of the two powders have to give the percentage of milk fat contained therein. 12. International Standard of Milk and Milk Products issued by joint venture of FAO/WHO, on Food standard programme was also produced before us. There also, whole milk powder has to contain minimum milk fat of 25 per cent, partly skimmed milk powder h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by making it further clear in the following sub-heading would not mean that partly skimmed milk powder would be covered by that sub-heading. 15. The only other argument raised on behalf of the respondents to bring the partly skimmed milk under sub-heading 0401.13 is that earlier in the case of the petitioner, decision was rendered vide order, Annexure P7 to the effect that partly skimmed milk powder is covered by sub-heading 0401.13, and since that order was not appealed against by the petitioner, that binds them. We have carefully gone through the order, Annexure P7. Although it is 7 pages long but on a reading of the same it shows that six pages are the reproduction of the reply of the petitioner to the show cause notice and only in the end in few lines the entire controversy has been decided, which reads as under: "I have carefully gone through the records, reply to the show cause notice and submissions made at the time of personal hearing. There is no distinction in the Tariff itself between the completely and partly skimmed milk. As such 'Every Day Whitener' is correctly classifiable under sub-heading 0401.13." Since the Excise Authority found that there was no distincti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed, no excise duty was leviable either on the skimmed milk or the partly skimmed milk. On the product in dispute, excise duty was wrongly levied and the petitioner succeeded before the authority in getting the levy deleted. 19. It was also urged by the counsel for the respondents that order Annexure P7 should have been appealed against and since no appeal was filed, the writ petition does not lie. We are unable to appreciate this argument either. When petitioner succeeded in getting the levy of excise duty deleted by order Annexure P7, where was the cause for filing of appeal. The cause occurred when the petitioner's product was subjected to excise duty, w.e.f. 1-3-1989. The same was objected to, and instead of deciding the objections, the petitoner was forced to pay the excise duty under protest to get their goods cleared for sale in the market. No determination was made after 1-3-1989 and no order was passed, and, therefore, the petitioner could not go up in appeal. Hence, this objection raised on behalf of the respondents is without merit. 20. Moreover, in the return the stand of the highest authority in the Central Government is that the item in dispute is covered by sub ..... 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