2011 (3) TMI 64 - AT - Central Excise

Classification - As per Rule 3(a) of the General Rules for the Interpretation of Central Excise Tariff the heading which provides the most specific description shall be preferred to headings providing a more general description - Held that if the product is classifiable under 21.06 product would be exempted under sr.no. 30A of the notification no. 3/2006 dated 1.3.2006 as amended by notification 3/2007 CE dated 1.3.2007 is not required to be adjudicated upon as the product is held to be classifiable under heading 2008 1900 for the purpose of central excise tariff - Appeal is allowed with consequential relief in a favour of assessee.

Summary

Issues Involved:
1. Classification of the product "Kesari Masala Milk" under the correct tariff heading.
2. Eligibility for exemption under specific notifications.

Issue-wise Detailed Analysis:

1. Classification of the Product:

The primary issue was whether the product "Kesari Masala Milk," comprising over 83% mixed dry fruits and spices like cardamom, mace, saffron, and nutmeg, should be classified under Heading 2008 1990 of the Central Excise Tariff Act, 1985, as a "Mixture of Dry Fruits" or under Heading 2106 9060 as "Food Flavoring Material."

- Appellant's Argument:
- The product should be classified under Chapter Heading 2008 1990, as it consists predominantly of dry fruits.
- Explanatory notes to Chapter Heading 2008 1990 include mixtures of nuts and other edible parts of plants, even if they contain additives like spices.
- The exclusion note cited by the Revenue does not apply since it pertains to mixtures not consumed as such, but the product in question can be consumed directly.
- According to legal principles, a specific entry (Chapter Heading 2008 1990) takes precedence over a residuary entry (Chapter Heading 2106 9060).
- Previous Tribunal decisions did not consider classification under Chapter 20 due to the absence of sub-headings at that time.

- Revenue's Argument:
- The product was previously classified under sub-heading 2107.91 as "Food Flavoring Material" and should remain so.
- The product fits the exclusion note to Heading 2008, which covers mixtures used for flavoring beverages.
- The opinion of Prof. Lele, based on a market survey, supported the classification as a food flavoring material.

- Tribunal's Findings:
- The exclusion note does not cover mixtures of nuts and applies to mixtures not consumed as such.
- The product is capable of being consumed directly, fitting under Chapter Heading 2008 1990.
- Chapter 20 specifically covers the product, making it unnecessary to consider the residuary Chapter 21.
- Explanatory notes to HSN, which align with the Central Excise Tariff, support classification under Heading 2008 1990.
- The previous Tribunal decision did not examine classification under Chapter 20.
- Rule 3(a) of the General Rules for Interpretation of Central Excise Tariff prefers specific descriptions over general ones.
- The denial of cross-examination of Prof. Lele violated principles of natural justice, and his opinion, based on an insufficient market survey, could not be relied upon.

2. Eligibility for Exemption:

- Appellant's Argument:
- Even if classified under Chapter 21, the product should be exempt under Serial No. 30A of Notification No. 3/2006 dated 1st March 2006, as amended by Notification No. 3/2007-CE dated 1st March 2007.

- Tribunal's Findings:
- Since the product was classified under Heading 2008 1990, the question of exemption under Chapter 21 did not arise.
- The product "Kesari Milk Masala" is classifiable under Chapter Heading 2008 1990 and thus eligible for the corresponding exemptions.

Conclusion:

The Tribunal concluded that the product "Kesari Milk Masala" is classifiable under Chapter Heading 2008 1990 of the Central Excise Tariff Act, 1985. The impugned order was set aside, and the appeal was allowed with consequential relief.