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TMI Blog2004 (7) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Tariff Act, as claimed by them or under sub-heading No. 0401.13 of the Tariff as confirmed by the Commissioner (Appeals) under the impugned Orders. 2.1 Shri B.L. Narasimhan, learned Advocate, submitted that they manufacture sweetened partially skimmed milk powder (PSMP), under different brand names, of which fat content varies between 1.50% to 26%; that the main case made out by Revenue is that Note 1 to Chapter 4 of the Tariff which defines Milk to mean full cream or partially or completely skimmed milk , applies to milk powder also; that commercially the varieties of milk, namely, full cream milk, partially skimmed milk and completely skimmed milk are recognised as separate products and hence, there was necessity of introduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing infants or otherwise would only fall under Heading 0401.19. He also mentioned that I.S. 1165: 1992 and IS 13334: 1992 clearly show that whole milk powder and skimmed milk powder are regarded as two commercially different products and are not one and the same thing; that the Prevention of Adulteration of Food Rules also clearly show that the products milk, skimmed milk and partially skimmed milk have different identity and also that whole milk powder, skimmed milk powder and partially skimmed milk powder are different products. The learned Advocate relied upon the judgment of the Punjab Haryana High Court in the case of Food Specialities Ltd. v. UOI - 1991 (51) E.L.T. 310 (P H) wherein the High Court held in Para 13 of the judgment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of CCE, Delhi v. Maruti Udyog Ltd. - 2002 (141) E.L.T. 3 (S.C.); that no penalty is imposable since the classification lists were duly filed since long claiming the classification of the impugned product under sub-heading 0401.13 of the Tariff. 4.1 Countering the arguments, Shri S.C. Pushkarna, learned D.R., mentioned that Milk Powder is covered under sub-heading No. 0401.13 of the Tariff and as it is not specially prepared for feeding infants, it is classifiable under the said Sub-heading; that the Punjab and Haryana High Court in the case of Food Specialities Ltd. has referred to Indian Standard Specifications for Milk Powder and the Prevention of Food Adulteration Rules, 1955 which were relied upon by the Petitioner and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. finally submitted that the Punjab Haryana High Court has classified the Partly skimmed milk powder under sub-heading No. 0401.19 as at the relevant time description of sub-heading 0401.13 was Skimmed Milk Powder and not Milk Powder as is the case now; that as there is a change in Tariff description, the decision in the case of Food Specialities Ltd. cannot be applied to the present matters for classifying partly skimmed milk powder under sub-heading 0401.19. 5.1 We have considered the submissions of both the sides. We observe that the Tribunal has already settled the issue involved in these appeals as to whether expression Milk Powder in sub-heading No. 0401.13 applies to all varieties of Milk Powder, namely, whole milk powder, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is mentioned that whole, partly skim and skim are the varieties of milk powder only and the fat content is different in respect of each variety of the milk powder. We also observe that Para 12 of the judgment of Hon ble High Court of Punjab and Haryana in the case of Food Specialities Ltd. refers to International Standard of Milk and Milk Products issued by joint venture of FAO/WHO on Food Standard programme. According to the said Standard, whole milk powder has to contain minimum fat of it per cent, partly skimmed milk powder has to have minimum milk fat of more than 1.5 per cent and less than 26 per cent and skimmed milk powder has to have maximum milk fat content of 1.5 per cent. The Hon ble Punjab Haryana High Court, thus, came to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand in view of the fact that the Hon ble Punjab Haryana High Court itself has observed all the three qualities of milk powder are universally known and recognized. After the amendment of sub-heading 0401.13, words Skimmed milk powder have been substituted with the words milk powder. Thus it is very much apparent that expression milk powder now used in sub-heading 0401.13 applies to all variety of Milk Powder put up in unit containers and ordinarily intended for sale other than powder specially prepared for feeding infants. Thus following our earlier decision in the case of Mehsana Dist. Coop. Milk Producers Union Ltd. we uphold the classification of the impugned product sweetened partially skimmed milk powder under sub-heading No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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