9911796707
TMI Blog2004 (8) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 1503.00 of Central Excise Tariff Act, 1985 as fixed vegetable oil . However, the Department has changed the view and proceeded against the appellants for re-classification of items under Chapter Sub-Heading 2108.99 of the CETA, as Dietary Food Supplement . The contention of the appellants is that the items, in the first instant, have resulted only on repacking and encapsulating and it has not resulted into a process of manufacture or bringing into existence new products or goods. The second point was that the item has been rightly classified under Chapter 15 which is an appropriate heading for classifying the item which are extracted out of plants in the form of oil. The same has been marketed as dietary food supplement in the caps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , etc.) for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.). Ld. Counsel also drew our attention to sub-Para 16 at Page No. 276 in HSN Explanatory Notes and points out that the preparations should contain added vitamins and sometimes minute quantities of iron compounds, however preparations which are intended for the prevention or treatment of diseases are excluded. The relevant sub-Para (16) is as under- (16) Preparations, often referred to as food supplements, based on extracts from plants, fruit concentrates, honey, fructose, etc. and containing added vitamins and sometimes minute quantities of iron compounds. These preparations are often put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sugar, milk powder, etc.). He prays that as the order is not a speaking order and not in terms of principles of classification, the stay application may be allowed by granting full waiver and staying the recovery till disposal of the appeal. He also prayed for an early hearing of the appeal as the huge amount is involved in the matter. 3. Ld. JCDR pleaded in support of the findings of the Commissioner given in internal Page 16 at sub-Para (iii) of the order which is reproduced below - (iii) Their argument is that when specific entry is there in the tariff there is no need for referring to trade parlance theory, chemical examination, chapter note, interpretation rules and HSN; end-use or advertisement literature. Let me go by their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. She also justifies various other findings of the Commissioner are given dealing on the arguments of the appellants that there is no new product emerging by virtue of repacking and encapsulation of the item and its classification under Chapter 15 is correct. She submits that the Commissioner has examined all the aspects of the matter and therefore, the appellants should be put to terms. 4. On a careful consideration of the submissions made by both the sides, we require to see as to whether the item can be classified under Chapter 21 and as to whether it has satisfied the description of the items falling under Chapter 21 and particularly satisfies the Explanatory Notes of HSN. On examination, we find force in the ld. Counsel s submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour and therefore, the stay application is allowed unconditionally by granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. As the amount involved in the matter is high, the prayer of both sides for an early hearing is accepted. The appeals to come up for final hearing on 10th December, 2004. 5. Ld. Counsel also submits that the Department is adopting coercive measures to recover the amount and forcing the appellants to clear the goods under Chapter 21. Heard ld. JCDR in the matter. We are of the considered opinion that as the operation of the impugned order has been stayed, therefore no coercive steps should be taken by the Department to recover the disputed amount or to force the appellants to clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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