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TMI Blog2012 (12) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... Pepsico India Holding Pvt. Ltd. along with interest and equal amount of penalty and also imposed penalty of Rs. 25,000/- upon the other appellant, M/s. Max Builders under Rule 26 of the Central Excise Rules, 2002. 2. Both the appellants have filed the instant applications seeking waiver of the condition of pre-deposit of demand, interest and penalty and stay recovery thereof. 3. The relevant facts for the purpose of the applications are that M/s. Pepsico India Holding Pvt. Ltd. is manufacturer of potato chips, raw material for the same includes potatoes. In the manufacturing process, certain peelings of potatoes as well as waste is generated. The case of the department is that aforesaid waste was sold by the appellant without p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of classification. According to him, the waste which has been generated in the manufacturing process falls within the Entry No. 23080000 of Chapter 23 relating to vegetable materials and vegetable waste, vegetable residues and by-products and this item is not subject to excise duty. Ld. Counsel submits that the order-in-appeal is not sustainable in law. As such, it is submitted that the appellant has a strong arguable case and he has been able to make out a prima facie case of complete waiver of the demand, interest and penalty. 8. Shri Bharat Bhushan, ld. Departmental Representative has canvassed in support of the order-in-appeal and submits that as per the test report referred to in the order-in-appeal, the sample conform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and vegetable waste, vegetable residue & By-products, whether or not in the form of pellets, of a kind used in Animal Feeding, not elsewhere specified on included". Impugned goods are neither vegetable materials and vegetable waste nor vegetable residue & By-products as elaborated in the above paras. The impugned goods are infact starch, though not in pure form, as per contentions contained in above paras. The starch whether pure or not specifically falls under the Tariff Item 11081300 as "potato starch". Therefore, the contention that it does not fall elsewhere also is not sustainable as potato starch falls specifically under 11081300. Hence, classification of the impugned goods under Tariff Item no. 23080000 instead of 11081300 as made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uge, which is called 'Starch Extraction Plant". Shri Gurjinder Singh, Prop. of M/s. Max Builders, in his statement dated 22-12-2008 has clearly mentioned that they are getting pototo starch from M/s. Pepsico but it is shown on paper as scrap veg. refuse and that his firm was having contract with M/s. Pepsico for purchase of pototato starch under Tariff Heading 11081300. The percentage of starch in the end product is not very relevant to classifying it as potato starch. It is also true that the product cleared by Respondent No. 1 may not have a stable shelf life but in view of the amendment carried out in Section 2(d) of the Central Excise Act, 1944; wherein an explanation has been added to the effect that any material or substance which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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