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TMI Blog2002 (12) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to tapioca, chicory and jaggery, contained honey and cashew nuts also. The classification of PTM was claimed under Chapter 9, sub-heading 0902 which was accepted by the jurisdictional Deputy Commissioner of Central Excise vide communication dated 10-1-1997. On 18-9-1998, the jurisdictional Superintendent classified the same product under sub-heading 0902. The other product PTR was also classified under the same heading by the jurisdictional Superintendent on 24-5-1999. The goods were accordingly being cleared on payment of duty under these headings. The packages containing the products described the contents as tea . Similar products were got manufactured by M/s. Hindustan Lever Ltd., from their job workers M/s. White Cliff Tea. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut citing Supreme Court judgment on Brooke Bond Lipton India Ltd. and Madras Rubber Factory Ltd., confirmed the amount as mentioned above. The two appeals have been filed against this common order and are disposed of by this single order. 4. We have heard Shri C.S. Lodha, Advocate for the appellant and Shri S.V. Parelkar, DR for the Revenue. 5. Shri Lodha first argued on merits. It was his case was that tea in admixture with other substance would continue to fall under heading 0902. It was his case that for attracting the title preparation that tea must first be boiled. He claimed that mere mixing did not amount to preparation. His second claim was that the package containing the product described the product as tea . The product was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to be valid, the amount of duty has to be recalculated applying the principles laid down by the Tribunal in the case of Sri Chakra Tyres Pvt. Ltd. He pointed out that the Commissioner in the impugned order had chosen not to follow the judgment of Sri Chakra Tyres, placing reliance on other orders of the Supreme Court. In reply, ld. DR opposes the contention of the appellant and reiterates the finding of the Commissioner. 6. We have carefully considered the submissions. The events leading to the issues of the show cause notice have been narrated above by us. In the case of one appellant the department had approved the classification under heading 0902 and in the case of other appellant the classification claimed was being examined by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal of the UOI. 9. The judgment again came up for consideration in the cited case of Maheshwari Mills Ltd. (supra). In the judgment, the Supreme Court confirmed the Madhumilan Syntex Pvt. Ltd., judgment holding that their judgment in the case of Elson [1988 (38) E.L.T. 571] did not give a different ratio. It was re-iterated by the Supreme Court that the department could not issue the demand of duty on the basis of an approved classification list without seeking to first vary the classification. 10. In the present case the show cause notice makes it clear that the demand was raised without completing essential process, that of modification of the approved classification. It has, therefore, to be held that the proceedings instituted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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