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TMI Blog2001 (8) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... d salted and were different from the products as brought by the appellants. The roasted and salted nuts were having a distinct name, character, identity and usage as compared to the nuts before roasting and salting. Other contentions urged by the appellants were also not found to be acceptable. The learned Commissioner of Central Excise (Appeals) confirmed the view taken by the adjudicating authority who had imposed a redemption fine of Rs. 1 lakh. A penalty of Rs. 30,000/- each on the three appellants had been levied. Duty @ 8% adv. under sub-heading No. 2001.10 of the Central Excise Tariff was demanded/confirmed. 2. All the three appeals were heard on 6-8-2001 when Shri A.K. Jain, Advocate, submitted that all forms of edible fruits and nuts were classifiable under Heading No. 08.01 of the Central Excise Tariff and that roasted nuts were also edible units. He pleaded that in roasting no process of manufacture was involved, no new product emerged, and prior to roasting and after the roasting the nuts remained the same. Under Chapter 20 of the Central Excise Tariff, preparations of nuts were covered. It was his contention that the roasted nuts were not covered within the expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit containers and marketed under a brand name are correctly held to be classifiable under Central Excise Tariff sub-heading 2001.10 by the adjudicating authority as these nuts are having a distinct name, character, identity and usage as compared to the nuts before roasting and salting. 4. Under Heading No. 20.01, the preparations of vegetables, fruit, nuts or other parts of plants, including jams, fruit jellies, marmalades, fruit or nut puree and fruit or nut pastes, fruit juices and vegetable juices, whether or not containing added sugar or other sweetening matter, were covered. It is provided in Note 1 of Chapter 20 that Chapter 20 covers only products which are prepared or preserved by processes other than merely chilled or frozen, or put in provisional preservative solutions, or dried, dehydrated or evaporated. In Note 2 of the said Chapter 20, it is provided that Chapter 20 does not cover fruit jellies, fruit pastes, sugar-coated almonds or the like in the form of sugar confectionery (Chapter 17) or chocolate confectionery (Chapter 18). These two Notes indicate the scope of the Chapter 20 - Note 1 in positive terms and Note 2 in negative terms. Mere chilling, freezing, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were included in Heading No. 20.08 of the HSN. It is also provided that the products of Heading No. 20.08 of HSN are generally put up in cans, jars or airtight containers, or in casks, barrels or similar containers. 7. In Chapter 8, it is explained that Chapter 8 covers fruit, nuts and peel ot citrus fruit or melons (including watermelons), generally intended for human consumption (whether as presented or after processing). The processes referred to in HSN Chapter 8 viz chilling, freezing, cooking by steaming or boiling in water or containing added sweetening matter, drying, dehydrating, evaporating, freezing, dry preservations, such as by sulphur dioxide gas, in brine, in sulphur water or in other preservative solutions. Roasting is not the process mentioned in Chapter 8. The nuts, if subjected to the above processes alone, will remain classified under Chapter 8. However, if the nuts have been prepared or preserved otherwise than as provided for in the Headings of Chapter 8, then they are classifiable under Chapter 20. At page 55 of the HSN Explanatory Notes relating to Chapter 8, it is provided as under - It should be noted that fruit and nuts of this Chapter remain cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TC there is no sub-classification attempted in the export entry. The judgment of the Apex Court clearly establishes that when roasted nuts and nuts not roasted are separately described in a Tariff, then their classification had to be determined separately. In the case of Northland Indus v. CCE, 1988 (37) E.L.T. 229 (T), the Tribunal had taken a view that the canned fruits in syrup were classifiable under sub-heading No. 0801.10 and not under sub-heading No. 2001.10 of the Central Excise Tariff. The products in the case before us are different and the roasted nuts were not the same as the canned fruits in syrups. In the case of Indian Tool Manufacturers v. CCE, Poona, 1984 (18) E.L.T. 527 (T), the Tribunal had held that the general term for a commodity in fiscal legislation covers that commodity in all its forms and varieties. In the present case, the roasted nuts are a different commodity than the nuts not roasted. Only unroasted nuts were classifiable under Chapter 8. In this connection, para 13 from the Supreme Court s decision in the case of Milak Brothers v. UOI, 1991 (51) E.L.T. 204 (SC), is extracted below - 13. We are not convinced that the goods exported by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts necessitated a detailed enumeration and precise classification, the export duty is levied only on a short list of items. This may be so but this point of distinction is not enough to explain why, when an entry finds a place in the export tariff, it should not receive its normal interpretation but should receive one circumscribed by the entries in the import tariff or other classifications. 10. In view of the above discussion, on merits, we do not find that the appellants has any case. 11. As regards the use of the brand name COCO , it is on record that the brand name COCO was owned by M/s. India International, a partnership firm. They continued to use that brand name. The adjudicating authority had concluded that the brand name COCO was not of the present appellants, M/s. Coco, a private limited company, she has given the following reasons - (a) The Brand name COCO belonged to M/s. India International and has been used by M/s. Coco Dry Fruit (India) Pvt. Ltd. prior to such assignment as has been claimed. (b) The Brand Name COCO is being used by M/s. India International even after the such assignment in favour of M/s. Coco Dry Fruit (India) Pvt. Ltd. as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se claims in her Order. The appellants have neither given the relevant documents to show that the subject brand names stood transferred in the name of appellant No. 1 nor have countered the afore-mentioned 6 grounds given by the adjudicating authority. The only document placed on record by them is a letter dated 24-6-98 issued by the Registrar of Trade Marks and addressed to M/s. Delhi Registration Service on the subject of request in Form No. 23 in respect of trade mark No 451300 in the name of appellant No. 1 and states that the subject-request had been allowed. There is no mention of trade mark coco in this letter. Accordingly, I cannot take any cognizance of this document filed by the appellants along with the appeal memorandum. 13. The appellants, M/s. COCO had taken a plea that brand name COCO had stood transferred/sold vide sale deed dated 18-2-1997. Earlier their plea was that the document dated 18-2-1997 was a deed of assignment. We consider that for the purpose of small-scale exemption, the brand name continued to belong to M/s. India International and the benefit of small-scale exemption has been rightly denied to M/s. COCO. 14. As regards the case law referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the permission to use a brand name of one person by another person and transfer or assignment of such a brand name. 15. As we have discussed above, there was no effective assignment in the present case and thus in the facts and circumstances of the case, the benefit of small-scale exemption has rightly been denied to M/s. COCO for using the brand name of another person. 16. For imposition of penalty, the reasons have been discussed by the adjudicating authority as pages 30-31 of the paper book. In para 9, the Commissioner of Central Excise (Appeals) had held as under - 9. In view of the above I hold that the confiscation of the seized goods, demand of duty on the same by the adjudicating authority is correct. I also find the redemption fine adjudged and the penalties imposed on appellants No. 1 and 3 to be in consonance with the offence committed by them. I also find the appellant No. 2 being a Partner in appellant No. 3 and Director of appellant No. 2 and who was looking after the affairs of appellant No. 1 has been rightly held to he liable to penalty under Rule 209A. I also find the penalty imposed on him is to be reasonable and uphold the same. 17. In the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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