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TMI Blog1991 (7) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... articles dutiable under Item 1B - ................................. the Central Government hereby exempts prepared or preserved foods falling under Item No. 1B of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), other than those specified in the Schedule hereto annexed from the whole of the duty of excise leviable thereon:- S.CHEDULE 1. ........................ 2. ......................... 3. ....................... 4. ....................... 5. ....................... 6. ....................... 7. ....................... 8. ....................... 9. ....................... 10. ...................... 11. ...................... 12. Skimmed milk powder but excluding such powder specially prepared for feeding of infants; 13. Condensed milk and condensed skimmed milk, in both cases whether sweetened or not; 14. Preparations with a basis of flour, of starch, of malt extract, or of mailed barley, and milk foods, which by simply mixing with, boiling in milk or water, can be used for making beverages, invalid foods and gruels, whether or not containing cocoa, but excluding baby foods, that is to say, foods specially prepared for fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the affidavit that maltodextrin is totally free from starch. 3.3. Learned Advocate, Shri Ravindra Narain, for the Appellants has placed reliance on the Tribunal s judgment in the case of CCE Pune v. Frozen Foods(P) Ltd. [1987 (27) E.L.T. 195 (Tribunal)].That judgment of the Tribunal by amajority of 2:1 held that the product Spert containing Glucose, Skimmed Milk Powder, Calcium Casienate, Malt Extracts, Sugar and Vitamin C was not covered by S. No. 14 of the Schedule to Notification 17/70 dated 1-3-1970, mentioned supra. The majority view therein held agreeing with the respondents therein i.e. Frozen Foods (P) Ltd., that Item 14 in the Schedule to Notification 17/70 should be read as follows :- (1) preparations with a basis of flour, of starch of malt extract, or of malted barley, and (2) milk foods, which may simply mixing with ,....." In this view of the matter, there does not seem to be any warrant for aggregating the proportions in which malt extract and skimmed milk powder are present in the product SPERT in order to arrive at a conclusion on the question whether the product conforms or not to entry No. 14." 3.4. Later on, however, the majority view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principal component parts of a thing. Since maltodextrin and skimmed milk powder are the chief or principal components of Complan , therefore, they form the basis of the product and would be covered by the said S.No. l4. 4.2. She further contended that in any case, the product Complan is a milk food having regard to the composition of the product already set out above. She also relies, in her support on the certificates from National Institute of Nutrition, (Indian Counsel of Medical Research) Hyderabad dated 17-10-1983 and National Dairy Research Institute (Indian Council of Agricultural Research), Karnal, dated 11/12-10-1983. In order to appreciate the contents of the certificates, we reproduce the relevant extracts therefrom :- Certificate of National Institute of Nutrition, Hyderabad. This has reference to your office letter No. V-17(1-B)VC/37/82. dated 5-10-1983 regarding milk products. From the available data provided from your letter, the product can be considered as milk food . We are not familiar with the regulations in regard to Central Excise Duty etc. In regard to the actual composition and the label regulations, kindly refer, to the State Public Health La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt extract, or of mailed barley, and of milk foods ............. [Para 3 of the judgment] In other words, according to her, there is a unanimity of views of all the Members of the Tribunal comprising the Bench in the case of Frozen Foods (P) Ltd., that Entry 14 related to items :- (1) Preparation with a basis - of flour, of starch, of malt extract, or of mailed barley, and (2) milk foods.......... She has, therefore, urged that the contention of the appellants in any case is repelled by the unanimous view of the Tribunal in Frozen Foods (P) Ltd. 4.5. In his rejoinder, Shri Ravindra Narain, learned advocate for the appellants has submitted that the majority view in Frozen Foods (P) Ltd., is correct. The majority view, according to him is that S. No. 14 lays down two conditions, namely, that for the product to fall under that serial numbef (1) it should have a basis of flour or starch etc. and (2) it should also have milk food. Since the product under consideration does not have either flour or starch or malt extract or malted barley, the product Complan would not be covered by the said serial number. 4.6. As regards the argument that malto-dextrin is a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. We have carefully considered the pleas advanced on both sides. 5.1. Scope of S. No. 14 of the Schedule to Notification 17/70, has already been set out in the majority view of the Tribunal s judgment in the case of Frozen Foods (P) Ltd., mentioned supra. It has been set out above in para 3.3. It is apparent from the view of the majority that the said S. No. 14 contains two dutiable products. First product is a preparation with a basis of flour, of starch, of malt-extract, or of malted barley and the second product is milk foods . It is in the above context that the majority has held that there does not seem to be any warrant for aggregating the proportions in which malt extract and skimmed milk powder are present in the product SPERT in order to arrive at a conclusion on question whether the product conforms or not to entry No. 14". The majority view, however, held, as also set out in para 3.4 above, that the department has not been able to discharge its burden that it is a milk food on the basis of the test of Commercial Parlance since the term Milk Food has not been defined in the Central Excise itself. We are, therefore, of the view that the reading of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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