2019 (4) TMI 320 - AT - Central Excise

Scope of SCN - classification of goods - communion wafers - Held that - We cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate - The mandate of the law pertaining to recovery of duties not paid or short-paid will have to be followed to the letter. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Classification of goods under Central Excise Tariff Act, 1985.

Analysis:
The dispute in the appeal pertains to the classification of '3D choco filled snacks' by M/s Pepsico Holdings Pvt Ltd under the Central Excise Act, 1944. The appellant classified the goods under heading no. 1905 90 90 with a nil rate of duty, while the central excise authorities proposed classification under heading no. 1905 32 11 for 'communion wafers coated with chocolate or containing chocolate'.

The appellant argued that the goods produced were not 'communion wafers' as they had a core of chocolate surrounded by a crust of whole wheat and oats. The tribunal noted the distinction between 'waffles and wafers', emphasizing that the product in question was not a thin wafer but a solid product containing chocolate.

The tribunal observed that 'communion wafers' are specifically produced for religious purposes, as evident from the term 'communion' associated with the ritual of 'mass' in churches. The tribunal did not discount the possibility of chocolate-covered or chocolate-filled 'communion wafers' being used in the ritual.

The authorized representative contended that 'communion wafers' do not normally contain chocolates, but no material was presented to support this claim. The tribunal referred to a Supreme Court decision to highlight that a fresh show cause notice could be issued for alternative classification if the declared heading was found inappropriate.

In conclusion, the tribunal set aside the impugned order and allowed the appeal. The tribunal emphasized following the mandate of the law regarding the recovery of duties not paid or short-paid, and refrained from deciding on a classification that was not pleaded before them.

This detailed analysis of the judgment highlights the key arguments presented by the parties, the tribunal's interpretation of the relevant legal provisions, and the ultimate decision reached by the tribunal regarding the classification of the goods under the Central Excise Tariff Act, 1985.