TMI Blog2000 (1) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... Kannan, learned D.R. 3. The learned Advocate submits that the composition of rasam mix and sambar mix are already on record and they claimed three classifications in the following order of preference :- (a) 9.03; (b) 21.03; and (c) 21.04 All these have already been claimed before the original authority and mentioned in the Order-in- Original. With respect to their claim under Chapter 9, the learned advocate submits that the heading 9.09 includes mixtures of various spices; that the definition of spices in the HSN as we as in the Spices Board Act clearly show that most of the ingredients used by them would fall under the said definition; that the essential character of these products was based on the aromatic flavour of these i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions and records of the case and we find that there is no dispute regarding the composition of these two products as the ingredients thereof have been declared on each packing. There is also no dispute that the goods are cleared only in unit packing for retail sale. We have perused the ingredients. On a careful consideration, we find that since the ingredients contained elements other than mere spices including dhal, vegetable oil etc., therefore, the product cannot be considered as a mere mixture of spices alone and hence classification under Chapter 9 is ruled out. For a product to fall under Chapter 9. Note 3 of the said Chapter of the Central Excise Tariff Act, 1985 provides that the addition of other substances to spices shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but intact, they contain other food products like dhal, vegetable oil. Therefore, they would be ruled out in view of this explanation from being regarded as mixed condiments and mixed seasonings also. On a consideration of the claim under heading 21.04, we are of the considered opinion that both these products can be classified as preparations for soups or broths requiring only addition of water, milk etc. The directions for use prescribed on the packaging show that if only water is added in required proportion and the same is then heated, the desired foodstuff i.e. sambar or rasam, as the case may be, is obtained. Both are essentially broths in nature. Broths can be consumed either by itself or in combination with other cereals. Similarly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Heading 21.04 on the wrong presumption that the appellants were not serious with respect to this classification. Therefore, the learned original authority had also not considered the applicability of these Notifications. Since this non-consideration on a highly presumptious ground amounts to non-application of mind in this respect and since on merits, we have now taken pains to find and hold that the goods are covered classification under Heading 21.04, therefore, the matter needs to be remanded to the original authority for the following purposes :- (a) for the examinations on merits regarding the applicability of the exemptions vide two Notifications noted above; and (b) for re-computation of duty and penalty etc. involved in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, then there was wilful suppression and the entire demand of five years was available under law. 11. We have carefully considered these submissions and the records of the case and we find that the product being combination of sucrose, saffron, cardamom, almond, milk powder etc. cannot be treated as mere preparation of nuts. The HSN Notes at page 170 under Heading 21.06 which coincide with the Heading 21.08 of the Central Excise Tariff explains that this heading covers preparations for use either directly or after processing such as cooking, dissolving or boiling in water, milk etc. for home consumption. The directions for use of Badam Feast show that the product has to be further dissolved in milk before it can be consumed as such. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod, once initial suppression is on record. In this case, since declaration was not filed and the fact of manufacture of the dutiable product was suppressed from the department, therefore, it is no avail that later there was some correspondence by which this fact came to the knowledge of the department. 13. To summarise, since we have upheld the Order-in-Original as far as the classification and demand for Badam Feast is concerned, and since we have not been able to agree with the classification of Sambar Mix and Rasam Mix under Heading 21.08, but have classified under Heading 21.04, therefore, the entire computation of duty needs to be re-computed in the light of these classifications. Since the appellants have succeeded on classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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