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TMI Blog2000 (8) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... eals), Indore noted that the appellants themselves had called their product as a ready to serve beverage; the percentage of fruit juice was less than 25% in the product while for being treated as a fruit juice according to the Fruit Products Order, 1955, the fruit juice percentage should have been not less than 25%. He held that the product 'Lipton Tree Top" was correctly classifiable under Heading No. 22.02 of the Central Excise Tariff. He also relied upon the Trade Notice No. 36/90 dated 9-4-1990 of the Bombay Central Excise Collectorate as appearing at 1990 (47) E.L.T. T10. The appeal was rejected. 2. The matter was heard on 5-6-2000 when Shri R. Ravindaran, Advocate and Shri P.K. Mittal, Advocate appeared for the appellants. Shri V.M. Udhoji, JDR represented the respondent/Revenue. Shri R. Ravindaran, Advocate submitted that the product "Lipton Tree Top" was a preparation of fruit, and its classification under sub-heading No. 2001.10 of the Tariff had been earlier approved by the Central Excise Deptt. Its production was started in August, 1987 but prior to 17-4-1989, there was no dispute, and the goods were being classified under sub-heading No. 2001.10 of the Tariff. Ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise, Cochin - 1999 (112) E.L.T. 191 (Tribunal). The Tribunal had observed that the fruit pulp based drink (Refresh) was classifiable under sub-heading No. 2202.90 of the Tariff by virtue of Explanatory Notes. (3) Maharashtra Agro Industrial Development Corporation Ltd. v. Collector of Central Excise, Nagpur - 1998 (103) E.L.T. 142 (Tribunal). The Tribunal had observed that the ready to serve beverages were not normal fruit juices but were manufactured out of fruit juices by addition of water sweetened or flavoured with essences to which citric acid was added and that such ready to serve beverage, the Tribunal held, were classifiable under sub-heading No. 2202.90 of the tarrif. The ld. Departmental Representative also referred to the Board's Clarification as appearing in 1990 (47) E.L.T. (T10) wherein it has been clarified that the products like Frooti, Maaza, etc. were appropriately classifiable as non-alcoholic beverages under Heading No. 22.02 of the Tariff. He also submitted that in the present proceedings, the classification list was different than those which had earlier been approved. The period of dispute was different. He also submitted that there was no estoppel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 13.6% for Apple drink, 15% for Mango drink, 14.5% for Guava drink and 13.6% for Orange drink. Total sugars expressed as sucrose were 11.57% in Apple drink, 13.55% in Mango drink, 12.8% in Guava drink and 11.6% in Orange drink. It was found by the Research Institute that the samples conformed to the specifications laid down in Fruit Products Order 1955, for ready to serve beverages, (refer page 112 of the paper book). 4. It is seen from the process of manufacture as described by the appellants that in the appellants' factory, the starting point for the manufacture of the products in question was the Mango Pulp/Mango Pulp Concentrate; Guava Pulp, apple juice concentrate and Orange juice concentrate. These were received in the factory in cans and other containers from the market. Pulp and pulp concentrate were subjected to grinding, homogenisation, etc. The juice concentrate was subjected to re-constitution. The preparation was obtained was blended with sugar, additives and preservatives. Adequate quantity of water was added to make the drink palatable, (refer page 31 of the paper book). After sterilisation, filling and packing, the fruit drink was marketed as a ready to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were classifiable under sub-heading Nos. 2202.11, 2202.12 2202.13, 2202.14 and 2202.19. Other non-alcoholic beverages not including fruit or veg. juices of Heading No. 20.01, were classifiable under sub-heading No. 2202.90. The expression "other non-alcoholic beverages" was mentioned as natural or artificial mineral waters and - aerated waters not containing added sugar or other sweetening matter, not flavoured, had already been covered by sub-heading Nos. 2201.11, 2201.12 and 2201.19 of the Tariff. This was to ensure that the goods already classifiable under Heading No. 22.01 are not included under the coverage of Heading No. 22.02. The expression "not including fruit or veg. juices of Heading No. 20.01" was also to ensure that fruit juices and veg. juices which were already included in the description under Heading No. 20.01 were not to be classified again under Heading No. 22.02 even when they were covered by the broader description of non-alcoholic beverages. The expression "other non-alcoholic beverages" was used for this purpose. In other words, although fruit juices and veg. juices were non-alcoholic beverages, they remained classifiable under heading No. 20.01, and were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressing fresh, healthy and ripe fruit or vegetables. This may be done (as in the case of citrus fruits) by means of "mechanical extractors" operating on the same principle as the household lemon-squeezer, or by pressing which may or may not be preceded either by crushing or grinding (for apples in particular) or by treatment with cold or hot water or with steam (e.g., tomatoes, black currants and certain vegetables such as carrots and celery). The liquids thus obtained are then generally submitted to the following processes: (a) Clarification, to separate the juice from most of the solids, by means of clarifying substances (gelatin, albumin, infusorial earth, etc.) or of enzymes, or by centrifuging. (b) Filtration, often by means of filter plates faced with kieselguhr, asbestos, cellulose, etc. (c) De-aeration, to eliminate oxygen which would spoil the colour and flavour. (d) Homogenisation, in the case of certain juices obtained from very fleshy fruits (tomatoes, peaches, etc.). (e) Sterilisation, to prevent fermentation. Various methods may be employed, for example pasteurisation (prolonged or "flash"), electric sterilisation in machines fitted with electrodes, sterilisati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excludes fruit juices in which one of the constituents (citric acid, essential oil extracted from the fruit, etc.) has been added in such quantity that the balance of the different constituents as found in the natural juice is clearly upset; in such case the product has lost its original character. The vegetable juices of this heading may also contain added salt (sodium chloride), spices or flavouring substances. Similarly, inter-mixtures of the juices of fruits or vegetables of the same or different types remain classified in this heading as do reconstituted juices (i.e., products obtained by the addition, to the concentrated juice, of a quantity of water not exceeding that contained in similar non-concentrated juices of normal composition). However the addition of water to a normal fruit or vegetable juice, or the addition to a concentrated juice of greater quantity of water than is necessary to reconstitute the original natural juice, results in diluted products which have the character of beverages of heading 22.02. Fruit or vegetable juices containing a greater quantity of carbon dioxide than normally present in juices treated with that product (aerated fruit juices), and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI Glossary, which has a different purpose, cannot, in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, black board is included within the meaning of the expression "similar laminated wood" in the same context of classification of black board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention." 8. Undoubtedly, the product "Lipton Tree Top" is a beverage ready to serve beverage. In common parlance, the expression 'beverage' is a drink which is consumed mainly for its thirst quenching property/refreshing properties or for its stimulating effect. Beverage has been defined in "The Random House Dictionary of the English Language" as : "A drink of any kind, other than water such as tea, coffee, beer, milk, etc." In "Encyclopaedia Britannica (Mycropedia)", ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent in the case of pure lime juice but shall not exceed 3.5 per cent in the case of other juice. The total soluble solids for sweetened fruit juice (except tomato juice) shall not be less than 10 per cent. It may also contain permitted emulsifying and stabilizing agents as prescribed in rule 61-C. It may also contain fumeric acid (food grade) or Quick Dissolving Fumaric Acid certified by Bureau of Indian Standard to the extent of 0.3 per cent by weight." Similarly in Part-II of Fruits Products Order, 1955, it has been provided that the fruit juice shall be un-concentrated liquid product expressed from ripe fruit and may contain portions of the pulp and other cellular matter natural to the fruit. As we have seen above, the product in question was prepared from the pulp or juice and was not fruit juice as per the Prevention of Food Adulteration Rules, 1955 and the Fruits Products Order 1955. 9. The Departmental Representative had referred to the Tribunal's decision in the case of Krishna District Milk Producers Union v. Collector of Central Excise - 1994 (71) E.L.T. 1026 (Tribunal). In this decision, the classification of fruit drink was under consideration. The fruit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the lower appellate authority has forgotten to appreciate the fact that, 'ready-to-serve beverage' is implied under the description of Tariff Heading 22.02. Food preparations of milk and cream as mentioned under 19.01 would not cover preparations of the nature of ready-to-serve beverages. Preparations of milk covered under Tariff Heading No. 19.01 would cover milk preparations which can be served after mixing with water or boiled water or milk to make it a beverage. There being no doubt that the product Softy (shake) Mix is ready to serve beverage. Therefore, it is proper to classify it, under Tariff Heading No. 2202.90. Consequently, the benefit of Notification No. 9/90-CE also cannot be extended because it is applicable to the product falling under some heading of Chapter XIX. Therefore, on this score we accept the appeal of the Revenue so far as classification of Softy (Shake) Mix is concerned". 10. We may also refer to the Bombay Collectorate Trade Notice No. 36/90 dated 9-4-1990 appearing at 1990 (47) E.L.T. (T10) wherein it was clarified that the products like Frooti, Maaza, etc. are appropriately classifiable as non-alcoholic beverages under Heading No. 22.02 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be less than 5.0 per cent w/w. It may also contain permitted emulsifying and stabilizing agents as prescribed in rule 61. It may also contain fumeric acid (food grade) certified by Bureau of Indian Standard to the extent of 0.3 per cent by weight." In the case of M/s. Bharat Forge & Press Industries (P) Ltd. v. CCE - 1990 (45) E.L.T. 525 (S.C.), it has been held by the Apex Court that under a residuary entry only such goods are covered, which cannot be brought under the various specific entries in the Tariff. It was a case under the erstwhile Central Excise Tariff and the competiting entries were items 26AA and 68. We consider that Heading No. 22.02 is not a residuary entry in the sense of Item No. 68 in the erstwhile Central Excise Tariff. The scope of the entry has been described above with reference to the HSN Explanatory Notes and we do not consider that this decision of the Hon'ble Supreme court is relevant to the facts under consideration before us. In the case of J.K. Synthetics Ltd. v. U.O.I. - 1981 (8) E.L.T. 328 (Delhi), it has been held that an authority can depart from an earlier stand only for cogent reasons such as fresh facts are brought on record or the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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