2015 (10) TMI 1310 - AT - Central Excise

Classification of goods - Classification as ice cream or other than ice cream - Classification under heading 2105 or under heading 2106 - Held that - Prima facie we find that the issue is covered by the judgment of Hon ble Supreme Court 2012 (12) TMI 149 - SUPREME COURT . In view of this position, we grant stay from recovery of duty, interest and penalty imposed under the impugned order till disposal of the appeal - stay granted.

Summary

Issues: Classification of goods under Central Excise Tariff Act, 1985 - Whether goods are to be classified as ice cream under heading 2105 or other than ice cream under heading 2106.

Detailed Analysis:

Issue 1: Classification of Goods
The case involved the classification of goods manufactured by the appellant, who claimed them to be "ice cream" under heading 2105 of the Central Excise Tariff Act, 1985. However, the Revenue contended that the goods should be classified under heading 2106 as "other than ice cream." The appellant argued that even though their goods contained vegetable fat, they were commonly understood as ice cream. The appellant's senior counsel cited the Hon'ble Supreme Court judgment in the case of Connaught Plaza Restaurant (P) Ltd. Vs. CCE, emphasizing that for the purpose of Central Excise law, the goods should be considered as ice cream based on common parlance understanding.

Issue 2: Arguments of the Revenue
The Special Counsel for the Revenue countered the appellant's claim by pointing out that the packaging and invoices of the goods labeled them as "Frozen Desert" rather than ice cream. The Revenue highlighted that the goods produced by the appellant contained vegetable fat instead of the required milk fat under the Prevention of Food Adulteration Act, 1954. According to the Revenue, the trade parlance did not consider the goods as ice cream but categorized them as Frozen Desert, leading to the classification under heading 2106.

Judgment and Decision
After considering the arguments from both sides and reviewing the impugned order along with the Hon'ble Supreme Court judgment in the Connaught Plaza Restaurant case, the Tribunal found that the issue was covered by the Supreme Court's decision. The Tribunal observed that the goods produced by the appellant, although containing vegetable fat, were commonly perceived as ice cream. Therefore, the Tribunal granted a stay from the recovery of duty, interest, and penalty imposed under the impugned order until the appeal was disposed of.