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TMI Blog2000 (7) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... question contained cocoa or not. It was his plea that the product choco cream toffee contained unsweetened covering chocolate. While it was admitted that the unsweetened covering chocolate was made of cocoa, it was contended that the chocolate could not be treated as cocoa for the purpose of Tariff entry under sub-heading No. 1804.00 of the Tariff. He referred to the Test Report as communicated to the appellants by the Asstt. Collector of Central Excise, Jalgaon under letter dated 11-3-1994, and submitted that the test report had been challenged by the appellants. It was his contention that the product choco cream toffee (double trouble) did not contain cocoa and was made only of the chocolate, which in popular sense, could not be treated as cocoa, for the purpose of the tariff classification. In reply, Shri V.M. Udhoji, JDR submitted that the chocolate was made of cocoa, and when the chocolate was used in the manufacture of choco cream toffee, it could not be said that it did not contain cocoa. Cocoa was the basic raw material for production of chocolate. He referred to the Explanatory Notes to the Harmonised Commodity Description and Coding System (HSN) and submitted that under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also known as cocoa mass. Chocolate is a food made from the seeds of a tropical tree called the cacao. The word cacao apparently comes from two Maya Indian words meaning bitter juice. The word chocolate came from two Maya words meaning sour water. The cacao tree produces the seeds, or cacao beans, from which all chocolate is made. These trees flourish in a warm, moist climate. They live within an area about 20 latitude north and south of the equator. Most of the world s cacao beans come from the west coast of Africa, where Ghana, the Ivory Coast, and Nigeria are the largest producers. Brazil is the largest cacao bean producer in the Western Hemisphere. The cultivated cacao tree grows about 25 feet (7.6 meters) high. It produces leaves, flowers, and fruit in all seasons of the year. The flowers are small. They grow singly and in clusters on the main stem of the branches and on the trunk. The ripe fruit, or pod, may be red, yellow golden, pale green, or a combination of these colours. The melonlike pod contains 20 to 40 almond-shaped seeds. When these seeds are fermented and dried, they become the commercial cacao bean. Because of a mistake in spelling, probably made by Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is added to the chocolate liquor. First the ingredients are mixed well. Then the mixture passes through a series of large, steel roll refiners. The shearing and rubbing action of these rolls reduces the mass to a smooth paste. Machines called conches then process the chocolate for 72 hours. In these machines, a large cylindrical stone rolling on a stone bed pushes the chocolate back and forth. This rubbing action smooths off any rough edges on the chocolate particles, helps develop the desired flavour, and finishes blending the entire mass. Milk chocolate is sold in the form of bars and as the coating on some candies. Sweet chocolate and semi-sweet chocolate are processed in the same way as milk chocolate. But manufacturers do not add milk solids to the mixture in making these products. Manufacturers sell large amounts of both sweet and semi-sweet chocolate to confectioners for making chocolate-covered candies. Increasingly large amounts of semi-sweet chocolate are used to make homemade cookies, candy, cakes, and other items. The Larousse Gastronomique, a recognised cookery encyclopaedia refers, in the 1988 Mandarin Paperback edition, to chocolate as a product consisting esse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining cocoa is not classifiable in Chapter 17. It was classifiable under Heading No. 18.06 which combines Heading No. 18.03 and Heading No. 18.04 of the Central Excise Tariff. It is also provided that the sugar confectionary containing cocoa or chocolate (other than white chocolate) in any proportion and sweetened cocoa powders were covered by Heading No. 18.06. Heading No. 17.04 covers sugar confectionary (including white chocolate) not containing cocoa. Sugar confectionary containing chocolate is outside the purview of Heading No. 17.04. For this purpose, only white chocolate is not treated is chocolate. White chocolate is composed of sugar, cocoa butter, milk powder flavouring agents. It is also provided that it should not contain more than mere traces of cocoa. Cocoa butter for this purpose is not treated as cocoa. The fat removed from chocolate liquor is known as cocoa butter. White chocolate is covered by Heading No. 17.04 of the HSN. 7. The product choco cream toffee (double trouble) was got tested from the Dy. Chief Chemist, Central Excise Laboratory, Bombay vide Test Memo dated 5-3-92, and it was reported that the sample answered positive test for presence of cocoa in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt did contain cocoa. To emphasise their contention the appellants had taken an example of Oxygen. The example taken by the appellants does not drive the point home as claimed by them. To drive the point home, it is mentioned that as an example if a product is classified under a particular heading subject to the condition that it does not contain sugar and the manufacturer manufactures that particular product and adds therein a sweet made of sugar, it cannot be said that the product has been made without containing sugar. The same situation exists here as sugar confectionary for falling under Chapter 17 should not contain cocoa which, on test has been found to contain cocoa. It is immaterial whether the cocoa has been used directly or indirectly in the confectionary. This view gets support from HSN Explanatory notes also. Under heading No. 1704, which is similar to the sub-heading No. 1704 of the Schedule to the Central Excise Tariff Act, (page 134 of the HSN) , it has been clearly mentioned that the heading excludes sugar preparations containing cocoa of heading 18.06. Heading No. 18.06 of the HSN refers to chocolate and other food preparations containing cocoa." 9. The ld. Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ECR 882 (Tribunal) for consideration was the product marketed under the label 'kitkat' whose principal ingredients were wafer, sugar, milk powder, wheat flour, cocoa paste, cocoa butter, hydrogenated veg. oil and process additives. The Tribunal held that the said goods were classifiable under Heading No. 19.05 of the Tariff as waffles and wafers. In para-21, the Tribunal had observed that all chocolate must necessarily contain cocoa. We do not consider that these decisions in any case advance the case of the appellants. 10. From the above discussion, it is clear that choco cream toffee (double trouble) contained cocoa. Chocolate is a product of cocoa. By using chocolate it could not be said that choco cream toffee did not contain cocoa. The expression used in the tariff entry was "other food preparations containing cocoa". Cocoa was present in the product. The fact that cocoa was contained in the product through the medium of chocolate will make no difference for classification of the product under Heading No. 18.04 of the Central Excise Tariff. 11. On careful consideration of the matter, we agree with the view taken by the learned Collector of Central Excise (Appeals), P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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