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TMI Blog1993 (7) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded by virtue of Note 1 thereto; exemption under Notification No. 234/82 dated 1-11-1982 was being available to the goods till the introduction of the new Tariff w.e.f. 28-2-1986 and therefore, there was no deliberate omission/commission on their part; Notification No. 185/86 dated 1-3-1986 would in any event be available to them. A corrigendum to the show cause notices was issued on 17-9-1987 intimating the assessees that the goods under reference would be classifiable under Heading 2001.10. The Assistant Collector upheld classification of green peas under Heading 2001.10, holding that the product is a prepared one because it goes through a series of processes like washing, cleaning, grading blanching etc. Mango pulp was held to be classifiable under the same sub-heading on the ground that the process of ripening, pulping after grading, heating or blanching after standardisation by sugar and citric acid etc. lead to the end product i.e. fruit pulp which is a prepared product. Shelled corn was classified under Heading 2107.91. Demands of Rs. 17,44,619.50 were confirmed on green peas and mango pulp and Rs. 70,584 on shelled corn. Penalty of Rs. 1,000 was also imposed. The Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich covers other edible vegetables, roots and tubers . He stated that Chapter 7 deals with edible vegetables and roots; Heading 07.01 covers dried vegetables including potatoes, onions and mushrooms, whole, cut, sliced, broken or in powder but not further prepared; dried leguminous vegetables including peas and beans, shelled, whether or not skinned or split . Since the green peas in question are not dried, they would not fall for classification under 07.01 and would fall under Heading 07.02. He further submitted that the Heading itself clearly indicates that cutting, slicing, breaking or powdering, shelling, skinning or splitting are not considered as preparations so as to take the vegetables out of the purview of the Chapter 7 and bring them within the scope of Chapter 20. The learned Counsel also submitted that under Note 1 to Chapter 20, it is essential to indicate that the items have not been prepared or preserved by processes other than merely chilling or freezing, etc. and in the case of the appellants, the peas are preserved by freezing i.e. lowering the temperature and, therefore, would go out of the coverage of Chapter 20. Regarding shelled corn, his submission is that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Food Technological Research Institute, Mysore in this regard. The said opinion is reproduced below : Central Food Technological Research Institute, Mysore-570013 FT/ID/276(1)/VHP/86 25 September 1986 To M/s. MAFCO Limited, Bombay - 20. Dear Sirs, Kindly refer to your letter No. TM/Excise/86 dated 2nd September 1986. It is not correct to consider addition of citric acid or sugar at the levels being incorporated by you as preservative in frozen pulp as well as fruit slices. As you may be knowing the major methods of preservation include use of chemical preservatives, application of heat, removal of moisture and reduction of product temperature to a level at which no microbes can proliferate it. In your particular case for the manufacture of frozen products, you seem to have adopted the last mentioned method viz., lowering of temperature to preserve the product. In frozen fruit pulps, it is the normal practice to add marginal levels of sugar and sometimes citric acid as a pre-preservation step to standardise the sensory quality of the product. In fact under the FPO, addition of sugar and acid is permitted for such purposes. It is common knowledge that incorporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on facts - the Tribunal held in that case that where specific entry in the Tariff is applicable to the goods manufactured (emphasis supplied) they become excisable and hence as between 8307 and 8302.90 the aluminium frames manufactured by the appellants are excisable goods and hence the concept of marketability by the appellants is not a determining factor. In the present appeal however, the appellants dispute the aspect of manufacture. We, therefore, set aside the duty demand on this item. We also set aside the penalty imposed on the appellants. 9. In the result, the impugned order is set aside and the appeal allowed with consequential relief to the appellants. 10. [Order per : S.K. Bhatnagar, Vice President]. - With due respects to Hon ble Judicial Member my views and orders in the matter are as follows : 11. In the case of frozen peas, I consider that subjecting fresh green peas (seeds) to the process of blanching (in hot water at high temperature), chilling/cooling and then freezing do cause some change in as much as blanching destroys enzymes and therefore the chemical composition changes and the taste etc. may be affected to varying degrees. The extent of change and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er parts of plants - whether or not containing added sugar or other sweetening matter. Hence the most appropriate Heading is 20.01. 19. (Chapter 8 is not applicable as that Chapter relates to edible fruits and nuts; peels of citrus fruite or melons and does not cover preparations thereof. In the instant case, the product can no longer be treated as mango. It can only be treated as a preparation of mango prepared by a method other than mere chilling, and preserved). 20. In view of the above, I hold that mango pulp marketed by the appellant is a manufactured product classifiable under 20.01. 21. In view of the above findings, the appeal is allowed only in respect of peas. It is remanded in respect of shelled corn for de novo consideration and rejected in respect of mango pulp. Dated : 20-7-1993 Sd/- S.K. Bhatnagar Vice President 22. [Order per : G.A. Brahma Deva, Member (J)]. - I have gone through the two different orders written by Hon ble Member (Judicial) and Hon ble Vice President. On going through the reasoning given in their respective orders, I concur with the view taken by the Hon ble Member (Judicial). Accordingly, the appeal deserves to be allowed. Final ..... X X X X Extracts X X X X X X X X Extracts X X X X
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