1989 (6) TMI 180 - AT - Central Excise

Summary

Issues Involved:

1. Admission of additional evidence.
2. Classification of the impugned product under the Central Excise Tariff.

Issue-wise Detailed Analysis:

1. Admission of Additional Evidence:

The appellants sought to introduce additional evidence, including an affidavit and documents from the Central Food Technological Research Institute, Mysore, regarding the use of malt in the impugned product. The Tribunal noted that these documents were not presented before the lower authorities and were obtained after the orders of the Assistant Collector and Collector (Appeals). The Tribunal rejected the request for the admission of these documents as it was an attempt to fill gaps in the appellants' case, which is against the accepted practice. However, the Tribunal did accept the technical literature on the manufacture of malt and malt products and the publication "Flavour '81."

2. Classification of the Impugned Product:

The primary issue was whether the impugned product should be classified under Heading 04.01, 04.04, or 19.01 of the Central Excise Tariff.

- Heading 04.01: The Tribunal ruled out classification under Heading 04.01, which pertains to "Milk and Cream, Concentrated or containing added sugar or other sweetening matter," as the product was not merely Milk or Cream due to various additions.

- Heading 04.04: The appellants alternatively claimed classification under Heading 04.04, which covers "other dairy produce; edible products of animal origin, not elsewhere specified or included." The Tribunal noted that Chapter 4 specifically excludes food preparations based on dairy products, particularly those falling under Heading 19.01. The Tribunal agreed with the Department's view that the product was not in the essential nature of either 'milk' or 'skimmed milk powder' and that there is a significant difference between 'skimmed milk powder' and 'products based on skimmed milk powder.'

- Heading 19.01: The Department contended that the product fell under Heading 19.01, which includes "food preparations of milk and cream, not containing cocoa powder or containing cocoa powder in a proportion by weight of less than 10%, not elsewhere specified or included." The Tribunal considered technical literature and submissions from both sides, ultimately agreeing with the Department's classification. The Tribunal noted that the product was a balanced food preparation and not merely a dairy produce.

Additional Arguments and Judgments:

- The appellants argued that the product predominantly contained skimmed milk powder and could not be treated as a food preparation of milk and cream. However, the Tribunal found that the definition of 'milk' in Chapter 4, which includes skimmed milk, must be considered harmoniously with other provisions of the Tariff.

- The Tribunal reviewed various judgments cited by the appellants but found that none of them directly addressed the classification of the current product. The Tribunal emphasized that decisions on classification must be based on the specific facts of each case.

- The appellants also claimed, as an alternative, that the product was a preparation with a beverage base, relying on a Supreme Court decision. The Tribunal rejected this claim as it was not substantiated by any technical opinion or evidence on trade parlance and was not raised before the lower authorities.

Conclusion:

The Tribunal upheld the classification of the product under Heading 19.01 as determined by the lower authorities and dismissed the appeal.