9911796707
TMI Blog1991 (9) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... -2-1986. Their claim was not accepted and the 'Milk Masala' was classified under sub-heading 2107.91 as edible preparations, not elsewhere specified or included and put up in unit containers and ordinarily intended for sale. 2. The Assistant Collector relied upon Note 5(b) of Chapter 21 of the Central Excise Tariff which is as under :- "5. Heading No, 21.07, inter alia, includes: (b) preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption." 3. The Assistant Collector held that milk masala is used with milk to give better taste and flavour and, in his opinion it was correctly classifiable under sub-heading 2107.91 and would attract 15% duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im is that the essential character of the nuts in the milk masala is physically and otherwise identifiable. Further, Assistant Collector's decision regarding classification of the product being based on his personal opinion, the order is bad in law having made without any market enquiry or evidence of persons conversant with the goods. One other plea is that since mixing of various ingredients does not amount to manufacture under Section 2(f) of the Central Excises & Salt Act, 1944, duty of excise is not attracted on milk masala. Reliance has also been placed on Explanatory Notes to Chapter 21 wherein it is specifically explained that Heading 21.06 (which corresponds to Heading 21.07 of the Central Excise Tariff) applies to Note (b) only wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t milk masala which was an edible preparation. 10. Replying to the arguments of the learned SDR, Shri Jain submitted that Pan Masala which is a similar preparation has been included under sub-heading 2106.11 although it is not a product finding place in the original HSN. He contested the arguments that all preparations would necessarily fall under Chapter 21 and submitted that Chapter 8 too covered preparations containing edible fruit and nuts. He also submitted that the Nomenclature was not the final guide in these matters. He requested that the matter be remanded for determining the classification afresh after taking into consideration all these submissions. 11. We have given our earnest consideration to the matter and have perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arketed. Thus, the contention that Rule 2(b) should be applied cannot be sustained. 13. We have perused the Assistant Collector's order and observe that he has come to this conclusion on the basis that milk masala is used with milk to give better taste and flavour and has also referred to Note 5(b) to Chapter 21 in his order. It cannot, therefore, be said that it is a non-speaking order as was contended by Shri Jain during the hearing. In view of this, we do not think that it suffers from any infirmity. 14. The plea that mixing of various ingredients does not amount to manufacture under Section 2(f) has to be subjected to test of the well-settled law laid down by the Courts that mixing would amount to manufacture provided a new article co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Milk Masala not being classifiable under Chapter 8, the only other Heading in which it can fall is the Residuary Entry 21.07 and specifically under sub-heading 2107.91. In fact, we notice that Note (a) in the Explanatory Note which is the same as Note 5(b) of the Central Excise Tariff covers a product like 'milk masala' specifically. 17. Shri Jain had also submitted that Pan Masala falls under Chapter 21 only because of a specific inclusion in that Chapter and milk masala being a similar preparation, it would not fall in that Chapter without specific inclusion. That this argument is devoid of any merit is evident from the fact that Chapter 21 deals with 'Miscellaneous Edible Preparations', and sub-heading 21.07 with the residuary entr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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