2018 (4) TMI 1090 - AT - Central Excise

Classification of goods - Mentos Mint - whether goods classifiable under Chapter Sub Heading No. 1704.10, or under Chapter Sub Heading No. 1704.90? - Held that - the basis for confirmation of demand was order-in-original dated 31.03.2009 passed by Commissioner of Central Excise, Chennai - the said order was not found to be sustainable by this Tribunal through its said final order 2013 (8) TMI 773 - CESTAT CHENNAI - a small percentage of gum in sugar confectionary may not be sufficient to consider the product as gum - impugned order-in-original not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Classification of product under Central Excise Act, 1944 and confirmation of differential duty for the period from April 2003 to February 2005.

Analysis:
The appeal was against an order passed by the Commissioner of Central Excise (Appeals), Delhi-III at Gurgaon. The case involved the classification of sugar confectionery not containing coca under chapter Heading 1704 of the Central Excise Tariff Act, 1985. The dispute arose from the re-packing of Mentos Mint by the appellant, which was considered as manufacturing under section 2f (iii) of the Central Excise Act, 1944. The Revenue contended that Mentos Mint should be classified under Chapter Sub Heading No. 1704.10, while the Chennai unit and the appellant classified it under Chapter Sub Heading No. 1704.90. The proceedings against the Chennai unit led to a show cause notice being issued to the appellant for the period from April 2003 to February 2005, resulting in the confirmation of a demand for differential central excise duty and imposition of a penalty. The appellant challenged this before the ld. Commissioner (Appeals), who upheld the order-in-original, invoking the extended period of limitation. The appellant then approached the Tribunal, arguing that a previous order dated 31.03.2009 passed by the Commissioner of Central Excise, Chennai had been set aside by the Tribunal in a separate case due to limitation issues, making the impugned order-in-appeal unsustainable.

Upon hearing both parties and examining the records, the Tribunal found that the basis for confirming the demand in the impugned order-in-appeal was the order dated 31.03.2009 passed by the Commissioner of Central Excise, Chennai, which had been deemed unsustainable in a previous Tribunal decision. Therefore, the Tribunal concluded that the impugned order-in-appeal was not sustainable and allowed the appeal by setting aside the order-in-original. The appellant was granted consequential relief as per law.