1999 (3) TMI 169 - AT - Central Excise

Summary

Issues:
1. Application for waiver of deposit of duty.
2. Classification of goods under Heading 2108.10 or 3302.10.
3. Interpretation of the term "odoriferous substances" under the Harmonized System of Nomenclature.
4. Impact of Note 7 to Chapter 33 of the Customs Tariff on classification.
5. Prima facie case of the applicant.

Analysis:
1. The application before the Appellate Tribunal was for the waiver of a duty deposit of Rs. 9.07 crores, contending that the goods manufactured by the applicant, used in making beverages, should be classified under Heading 2108.10 and not under Heading 3302.10 as claimed by the department.

2. The advocate for the applicant argued that the goods were compounded preparations for the production of aerated waters, not mixtures, as alleged by the department. The Commissioner had initially dropped the proceedings, but on appeal, classified the goods as unique compounded formulations not covered by Heading 3302.10. The advocate highlighted that the goods were not mixtures but specifically prepared compounds, supporting the classification under Chapter 21.

3. The Departmental Representative argued that the substances forming the bases for beverages fell under the definition of "odoriferous substances" as per the Harmonized System of Nomenclature. He referred to relevant notes and chapters to support the classification under Heading 3302.10.

4. The issue of the impact of Note 7 to Chapter 33 of the Customs Tariff, incorporated in 1997, on the classification was raised. The absence of this note before 1997 raised questions about the deliberate omission and its effect on defining the scope of "odoriferous substances." The Tribunal noted that the classification under Chapter 21 was based on the goods not being mixtures, indicating a prima facie case for the applicant.

5. Considering the arguments presented and the potential impact on duty payment and credit, the Tribunal listed the appeal for an early hearing, recognizing the applicant's prima facie case and the revenue-neutral aspect due to Modvat credit. The status quo was to be maintained until the hearing on 17th May, 1999, due to the recurring effect of the issue.