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TMI Blog2008 (9) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... ely thus modifying the impugned order which classified both products under CSH 2108.99, allowing the appeal filed by the respondents. Original authority had decided the classification after examining the process of production of the impugned goods. She demanded the duty due of Rs. 11,07,641/- for the period 1-4-02 to 31-1-03 and interest for the delay and allowed Modvat credit on inputs used. As for My Coffee, the same is produced by mixing instant coffee powder, milk powder and sugar. She relied on the reasoning followed by the Commissioner (Appeals) Central Excise, Ludhiana in his OIA No. 113/CE/APPL/LDH/03, dated 31-3-03 in respect of M/s. Nestle India Ltd. He had relied on the decision of the Tribunal in classifying similar products Nes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved that the Commissioner (A) did not consider their plea that there was no manufacturing process involved in preparation of My Coffee or My Tea . He had also not considered if the impugned goods were edible preparations which was a pre-requisite to classify the products as decided in the impugned order. 4. The ld. SDR relies on the following case law in support of the Revenue s appeal. (a) Nestle India Ltd. v. CCE, Ludhiana, 2004 (169) E.L.T. 22 (Tri.-Del.) (b) Nestle India Ltd. v. Collector of Central Excise, Chandigarh - 1994 (71) E.L.T. 850 (Tri.) The ratio of these decisions is to the effect that preparations similar to the impugned goods are classifiable under CSH 2101.10. 5. Ld. Counsel for the respondents rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or with a basis of coffee or tea; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof. 2101.10 : Extracts, essences and concentrates, of coffee and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee. 2101.20 : Extracts, essences and concentrates, of coffee and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee. 2108.99 : Others. In the impugned order, the Commissioner (A) held that coffee included coffee extracts also. Therefore, the product My Coffee which consists of coffee extracts, chicory, milk powder and sugar was held to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht under any of the specific items mentioned in the tariff, resort cannot be had to be residuary item; Following the above decision the Tribunal had held in the Nestle India Ltd. case (supra), that the preparations consisting of coffee extract were covered by the entry 2101.10. Therefore, the specific entry had to be preferred to residuary entry. Accordingly, the classification of the preparation of coffee extract examined in the said decision was held to be CSH 2101.10. 7. In the instant case, the Heading 21.01 in its sub-headings 10 and 20 covered preparations with a basis of coffee and tea respectively. Therefore, My Coffee and My Tea have to be classified under CSH 2101.10 and 2101.20 respectively in preference to the residuary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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