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TMI Blog2015 (1) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... orities, which he proposes to rely upon at the hearing of the appeal. Non-filing of RUDs with the memorandum of appeal is of no consequence and does not amount to violation of Rule 16 of CESTAT (Procedure) Rules, 1982. The contention, repeatedly asserted by the ld. AR is frivolous and wholly irrelevant. That the ld. AR has refused to make submission on the merits of the stay application, we record, that is a conscious choice made on behalf of Revenue. Be that as it may. We however record our disapprobation of the insistence by the AR that the stay application ought not to be heard till RUDs mentioned in the show cause notice are filed by the petitioner/appellant. - In the light of the decision of the Tribunal in Ravalgaon Sugar Farm Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturer of cocoa, cocoa products and wafer products falling under Chapter Headings 18 and 19 of the First Schedule of CETA, 1985. After scrutiny of ER-1 returns filed by the petitioner for the period December 2010 to August, 2011, Revenue assumed that petitioner cleared the product Milk Treat (waffles and wafer and other) valued at ₹ 8,35,19,472/- falling under sub-heading 1905 32 19 of the First Schedule to the CETA; after remitting excise duty at the rate of 4% ad valorem + appropriate cesses upto February 2011 and 5% ad valorem + appropriate cesses from March, 2011 to August, 2011, whereas according to the Revenue, the product is chargeable to duty @ 10% ad valorem since the product was classifiable under sub-heading No. 1905 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d contains cocoa butter; that CESTAT in Ravalgaon Sugar Farm Ltd. v. C.C.E., Ahmedabad - 2000 (121) E.L.T. 488 (Tri.) observed that white chocolate is specifically a kind of sugar confectionary falling under heading 1704.90 (corresponding to the present chapter heading 1704.99 00) and should not be considered as chocolate: further, that cocoa butter is an ingredient of the product, was also considered in the decision, leading to the conclusion that white chocolate does not amount to chocolate. Petitioner also contended that Milk Treat contains cocoa butter but not cocoa powder and relied upon test reports which were produced before the Appellate Commissioner on the earlier occasion. Petitioner further contended that in terms of HSN explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Commissioner held that while white chocolate does not have cocoa solids, it does contains cocoa butter which according to the Wikipedia is extracted from cocoa bean and this is sufficient to establish that the product contains chocolate; and that white chocolate is one of the varieties of chocolate, is a cocoa product and contains cocoa. The appeal was dismissed. 9. From the narrative above; the show cause notice; the reply of the petitioner thereto; the primary adjudication order; and the impugned order of the Appellate Commissioner, it is clear that there is no dispute that the impugned demand arises on the singular issue as to whether wafers coated with white chocolate (which is the admitted, undisputed product manufactured by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other papers on the file of or referred to in the orders, of the departmental authorities, which he proposes to rely upon at the hearing of the appeal. 12. Responding to ld. AR s preliminary objection, ld. Counsel for the petitioner/appellant clearly stated that since the identity of the product in issue is not in dispute, nor the quantum of the duty assessed and since the dispute is exclusively on whether the product should be classified under one sub-heading or the other of the CETA, he has not filed RUDs, which are only the AR-1 returns filed and the duty calculation memo drawn up by Revenue in support of the proposal to levy duty. RUDs are totally irrelevant in the context of the issues arising in the appeal, is the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avalgaon Sugar Farm Ltd. v. C.C.E., Ahmedabad (supra) this Tribunal ruled that according to HSN, sugar confectionary (including white chocolate not containing cocoa is also covered by the heading No. 17.04) is outside the purview of heading No. 17.04. For this purpose only white chocolate is not treated as chocolate and that white chocolate is composed of sugar, cocoa butter, milk powder flavouring agents; and that cocoa butter for this purpose is not treated as cocoa and that the fat removed from chocolate liquor is known as cocoa butter. The Tribunal concluded that white chocolate is covered by heading 17.04 of HSN. 16. In the light of the decision of the Tribunal in Ravalgaon Sugar Farm Ltd. v. C.C.E., Ahmedabad and the detailed stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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