2013 (10) TMI 791

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..... said Notification is very specific saying that ice-cream and non-alcoholic beverages, prepared and dispensed by vending machines only, are eligible for the benefit – Following CCE, New Delhi vs. Hari Chand Shri Gopal [2010 (11) TMI 13 - SUPREME COURT OF INDIA] - The condition of a Notification be strictly fulfilled to avail the benefit - the Applicant could not able to make out a prima facie case for total waiver of pre-deposit of the dues - the Applicant are directed to deposit 25% of the duty – upon such submission balance would stand waived and its recovery stayed during pendency of the Appeals - Partial stay granted.
D M Misra And I P Lal, JJ. For the Appellants : Ms P Patil, Adv. Assisted By Ms M Patil, Adv. For the Respondent : S .....

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..... vocate specifically drew our attention to paras 33 & 34 of the said Judgment, wherein it had been emphasized that classification of the said product be arrived at on the basis of a common parlance test. In the result, their alternative submission that the goods, 'Softy Mix' are classifiable under Heading 21050000, finds support of the said judgment of the Hon'ble Supreme Court. Regarding exemption Notification No.06/2002-CE (supra), the ld. Advocate submitted that as per Serial No.8 of the said Notification that ice-cream and non-alcoholic beverages, prepared and dispensed by vending machines are eligible for exemption. In the present case, even though the ice-cream products were cleared from the factory premises in bulk packs, but ultimate .....

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..... n of the product namely, 'Softy Mix', interpretation of the exemption Notification No.06/2002-CE (supra) plays a significant role in confirmation of demand. The Applicant initially claimed the classification under two alternative Headings viz.- (i) Heading No.21069099 and (ii) Heading No.21050000. Admittedly, the classification under Heading No.21069099 was claimed by the Applicant by relying upon the judgment of this Tribunal in the case of Connaught Plaza Restaurant (P) Ltd.(supra), which has now been overruled by the Hon'ble Supreme Court. But, on the basis of the said judgement of the Hon'ble Supreme Court, the Applicant, now, claim the classification under Heading No.21050000. However, the issue of classification becomes secondary at t .....

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