2015 (8) TMI 343 - AT - Central Excise

Concessional rate of duty - bubble gum - whether in the nature of sugar confectionary (excluding white chocolate) not containing cocoa - Duty exemption under notification no. 6/02 CE dated 1/3/2002 - Held that - When w.e.f, 28/02/2005 heading 1704 pertaining to sugar confectionary (including white chocolate) not containing cocoa had been re-structured and as per the re-structured heading, the sub-heading 170490 covered bubble gum, and during period w.e.f. 28/2/2005, the exemption notification no. 06/02 CE (serial no. 247) continued to prescribe concessional rate of duty for sugar confectionary (excluding white chocolate) not containing cocoa covered by heading 170490 , in our view, the benefit of exemption under this notification cannot be denied as - (a) there is no dispute that bubble gum contains the sugar and is covered by the expression sugar confectionary (excluding white chocolate) not containing cocoa and (b) during period w.e.f. 28/02/2005 heading 170490 also covered bubble gum. W.e.f. 1/3/2006 notification no. 06/02 CE was rescinded and was replaced by notification no. 03/06CE dated 1/3/2006 and serial no. 16 of this notification also provided concessional rate of duty of 8% adv. for sugar confectionary (excluding white chocolate) not containing the cocoa falling under sub-heading 170490 when this notification had been issued on 1/3/2006, the new Central Excise Tariff had already come into existence w.e.f. 28/2/2005 and in this new Tariff, sub-heading 170490 covered bubble gum. In view of this, the department s contention that the sub-heading 170490 mentioned in serial no. 247 of the notification no. 06/02CE must be read with the old Central Excise Tariff as it existed during period prior to 28/2/2005 is not acceptable. It is seen that it is only by notification no. 29/06CE dated 4/5/2006 that serial no. 16 of the notification no. 03/06CE was amended and the entry against serial not. 16 in this notification was replaced by sugar confectionary (excluding white chocolate and bubble gums and thus by the amendment notification no. 29/06CE dated 4/5/2006, the bubble gum was excluded from the purview of the exemption. Benefit of this exemption notification cannot be denied to bubble gum. In this regard, we also take note of the fact that in terms of the judgments of the Tribunal in the case of Joyco India Limited Vs. CCE-Chandigarh 2002 (4) TMI 338 - CEGAT, NEW DELHI wherein it was held that bubble gum and chewing gum are two different commodities and, therefore, the word chewing gum in heading 170410 of the 8 digit Tariff w.e.f. 28/2/2005 cannot be considered as including bubble gum and accordingly, the bubble gum would be covered by 170490 and during the period of dispute, the sugar confectionary (excluding white chocolate) not containing cocoa falling under heading 170490 was eligible for the exemption. - impugned order is not sustainable - Decided in favour of assessee.

Summary

Issues:
Interpretation of duty exemption under notification no. 6/02CE for bubble gum from 25/4/2005 to 28/2/2006.

Analysis:
The dispute revolves around whether bubble gum was eligible for duty exemption under notification no. 6/02CE during the period from 25/4/2005 to 28/2/2006. The notification prescribed a concessional rate of duty for "sugar confectionary (excluding white chocolate) not containing cocoa" falling under sub-heading 1704.90. The contention arises from changes in the Central Excise Tariff structure, specifically the classification of bubble gum under sub-heading 170490. Prior to 28/2/2005, bubble gum was not covered under sub-heading 170490, but with the introduction of the 8 digit tariff from 28/2/2005, bubble gum fell under this sub-heading. The crux of the matter is whether the notification should be aligned with the old tariff structure or the revised one post-28/2/2005.

The appellant argued that post-28/2/2005, bubble gum was covered under sub-heading 170490, making it eligible for the duty exemption under notification no. 6/02CE. They relied on the distinction between "chewing gum" and "bubble gum" as separate commodities, as established in previous Tribunal judgments. The appellant contended that the notification should be read in conjunction with the revised tariff structure post-28/2/2005, where bubble gum was included under sub-heading 170490.

On the other hand, the department maintained that the notification should be interpreted based on the old tariff structure, where bubble gum was not covered under sub-heading 170490. They argued that despite the changes in the tariff post-28/2/2005, the notification should be aligned with the pre-existing classification of goods.

The Tribunal analyzed the changes in the tariff structure and the wording of the notification. It concluded that post-28/2/2005, bubble gum fell under sub-heading 170490, making it eligible for the duty exemption under notification no. 6/02CE. The Tribunal emphasized that the notification should be interpreted in conjunction with the revised tariff structure, where bubble gum was included under sub-heading 170490. Additionally, the Tribunal cited the subsequent amendment in a later notification specifically excluding bubble gum, further supporting the eligibility of bubble gum for the duty exemption during the disputed period.

In light of the above analysis, the Tribunal found in favor of the appellant, setting aside the impugned order and allowing the appeal.