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2016 (9) TMI 1130 - AT - Central ExciseClassification - Milk Shake Mixes - whether they are to be classified under Chapter Heading 1901.90 90 of Central Excise Tariff as per Revenue or under 0404 as claimed by the assessee - Held that - by considering the CESTAT s decision in the case of Amrit Foods Vs. CCE Meerut-I 2006 (3) TMI 523 - CESTAT NEW DELHI endorsed by Hon ble Apex Court in the case of CCE Vs. Amrit Food 2015 (9) TMI 1269 - SUPREME COURT we hold that the Milk Shake Mixes are rightly classifiable under Chapter Heading 0404 only. Classification - flavoured syrups/fruit syrups/Squashes - whether they are to be classified under Chapter Heading 21069040/2169050 as per Revenue or under Chapter 20 of Central Excise Tariff as per assessee - Held that - it is found that the appellant has not given complete ingredients of the subject items; they have only conveyed that products have got more than 25% fruit contents. The Explanatory Notes to HSN for Chapter Heading 2009 inter alia mention that wherever greater quantity of water has been added the resultant diluted product may have the character of the beverages of Heading 22.02 but the classification under Chapter 22.02 has not been argued by any side in the present proceedings i.e. either by the Revenue or by the assessee/appellant. The Revenue specifically pleads for classification under Chapter Heading 21069040 and 21069050. Consequently from the records available and the submissions given by both sides when no other alternative classification like Heading 22.02 etc. has been cited by either the appellant or the Revenue and after considering the description given for the Chapter 2106 of Central Excise Tariff as well as the Explanatory Notes to HSN for Chapter 2106 mentioned above we are of a considered view that the subject items are to be classified under Chapter Headings. 21069040/2106905. Notification No. 3/2005-CE dated 24.2.2005 - benefit of exemption - eligibility - chocolate syrup Butter Scotch Blue curacao Grenadine Mint Orange Triple Seed Caramel Natural Caramel Vanila Lime - goods sold without brand name of assessee - Held that - the appellant claims that goods were unbranded whereas the Revenue says that there was no sufficient evidence produced by the appellant to prove that the goods were unbranded. We remand the case back to the original adjudicating authority for decision afresh on this issue within three months of receipt of this order where the appellants would be given opportunity of hearing and production of evidence if any in respect of branding or unbranding of the goods. Notification No. 3/2005-CE dated 24.2.2005 - benefit of exemption - eligibility - Mixed Seasoning Chinese Flavour - Held that - the appellant contended that both the conditions of Notification No. 3/2005 that goods be in other than unit container and be not bearing the brand name have been fulfilled. There is clear finding that goods are in unit container. The appellants say that the goods were in unit container up to 28.2.2005. Further from the facts on record for the period after 29.2.2005 it is not proved that the goods were not bearing the brand name. It means that the assessee/appellants in any case are not entitled to the benefit of the Notification No. 3/2005 for these goods up to 28.2.2005. Therefore the demand of duty of Central Excise on all these goods for the period up to 28.2.2005 is hereby confirmed. However for the period after 28.2.2005 the matter is remanded back to the original adjudicating authority to decide afresh within three months of receipt of this order. Invokation of extended period of limitation - demand and imposition of penalty - wilful suppression or mis-statement of facts - intention to evade payment of duty - Held that - there is no material on record to prove wilful suppression or any mis-statement of facts with intention to evade payment of duty of Central Excise on the part of the appellants. Therefore it is held that liability of duty of Central Excise can be fixed only for the period of one year from the relevant date. Consequently demand beyond the period of one year from the relevant date is time barred as per the provisions of law of Central Excise. As there is no wilful suppression or mis-statement with intention to evade payment of duty of excise by the appellants the penalties imposed of 71, 83, 194/- on the appellant No. 1 under Section 11AC of Central Excise Act 1944 and of 2, 00, 000/- on appellant No. 2 Shri Rajiv Behl Director under Rule 26 of Central Excise Rules 2002 are hereby dropped.
Issues:
1. Classification of Milk Shake Mixes 2. Classification of flavoured syrups/fruit syrups 3. Goods sold without brand name - Eligibility for exemption benefit under Notification No. 3/2005-CE (Sr. No. 9) 4. Goods sold without brand name - Eligibility for exemption benefit under Notification No. 3/2005-CE (Sr. No. 10) 5. Time-barred demand and imposable penalty Classification of Milk Shake Mixes: The Tribunal considered the classification of Milk Shake Mixes under Chapter Heading 0404.90 based on the decision in the case of Amrit Foods Vs. CCE, Meerut-I, which was endorsed by the Hon'ble Apex Court. The Tribunal noted that the products were rightly classifiable under Chapter Heading 0404 and not under 1901.90 as held in the impugned order. Classification of Flavoured Syrups/Fruit Syrups: The dispute revolved around the classification of flavoured syrups/fruit syrups under Chapter Heading 21069040/21069050. The appellant claimed classification under Chapter 20, citing high fruit content, while the Revenue argued for classification under Chapter Heading 2106. The Tribunal analyzed the contents of both chapters and concluded that the subject items should be classified under Chapter Headings 21069040/21069050 based on the submissions and descriptions provided by both sides. Goods sold without brand name - Eligibility under Notification No. 3/2005-CE (Sr. No. 9): Regarding the eligibility for exemption benefit under Notification No. 3/2005-CE (Sr. No. 9) for goods sold without a brand name, the Tribunal remanded the case back to the original adjudicating authority for a fresh decision within three months to determine if the goods were unbranded as claimed by the appellant. Goods sold without brand name - Eligibility under Notification No. 3/2005-CE (Sr. No. 10): For the items Mixed Seasoning Chinese Flavour, the Tribunal confirmed the demand of duty up to a certain period where the goods were found to be in unit containers and remanded the matter back to the adjudicating authority for further decision on the period after a specified date. Time-barred demand and imposable penalty: The Tribunal held that the demand beyond a certain period was time-barred as per the provisions of the Central Excise law. Due to the lack of wilful suppression or misstatement, the penalties imposed on the appellants were dropped, and the liability of duty was fixed for a specific period based on the relevant date. In conclusion, the Tribunal set aside the impugned order, allowed certain appeals, remanded some issues back to the original adjudicating authority for fresh decisions, and dropped penalties due to the absence of wilful suppression or misstatement.
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