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TMI Blog2015 (7) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Tariff prior to 1-1-2005 and Chapter 20 of the Central Excise Tariff w.e.f. 1-1-2005, except that the 8-digit tariff is more detailed and specifically covers a large number of commodities in the General Group of the “preparations of vegetable, fruits, nuts or other parts of the plants”. In our prima facie view, therefore, Board’s Circular dated 6-2-88 clarifying that the potato slices fried in edible oil, salted and packed in printed plastic pouches (or other unit containers) are classifiable under Chapter 20 is applicable Commissioner in the impugned order has held that the goods, in question, are not covered by SI. No. 29 of the Notification No. 3/2006 but are covered by Sl. No. 30, which covers “ready to eat food preparation”. However, in this regard the Board vide Circular No. 841/18/06-EX, dated 6-12-2006 has clearly clarified that the “namkeens” and “mithai” covered by Sl. No. 29 of the Notification No. 3/2006-C.E. would continue to be fully exempted from duty even if the same are in packaged forms. We find that this circular of the Board has been totally ignored by the Commissioner. In any case, when Sl. No. 29 of the Notification No. 3/06-C.E. covers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of stay application. 3. Shri B.L. Narsimahan, advocate, the ld. counsel for the appellant, pleaded that before introduction of the 8-digit Tariff w.e.f. 1-1-2005, Chapter 20 had only one heading 20.01 which covered preparations of vegetables, fruits, nuts or other parts of plants, including jams, fruit jellies, marmalades, fruit or nut puree and fruit or nut pastes, fruit juices and vegetable juices, whether or not containing added sugar or other sweetening matter , that in respect of this tariff entry, there was Board s Circular No. 6/88, dated 18-2-1988 clarifying that the potato wafers are classifiable under Heading No. 20.01, in view of the Chapter Note of Chapter 20, and such wafers will not fall under Heading No. 21.08, as this is a residuary heading and Heading 20.01 is more specific, that in the 8-digit tariff in force w.e.f. 1-1-2005, Heading No. 21.06 is the same as Heading 21.08 of the old tariff covering as food preparations not elsewhere specified or included and scope of the Chapter 20 of the new tariff w.e.f. 1-1-2005 is the same as the scope of Heading 20.01 of Chapter 20 of the tariff during period prior to 1-1-2005, that, in view of this, the Board s circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held that Rings made out of flour of rice, wheat and potato, fried after adding flavour and packed for retail sale are correctly classifiable as other food preparations under 2108.99 and hence are eligible for exemption as namkeens under Notification No. 4/97-C.E., that the Tribunal in the case of Collector of Central Excise, Bombay v. Indian Organic Chemicals Limited reported in 1998 (104) E.L.T. 149 (Tribunal) has held that potato wafers not put up in unit containers are classifiable under Heading No. 2001.90 of the Tariff and not under sub-heading No. 2001.10, even if the same were ordinarily intended for sale, that in view of the above submissions, the impugned order is not correct, that the appellant have strong prima facie case in their favour and hence the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of their appeal and recovery thereof may be stayed. 4. Shri Pramod Kumar, ld. Jt. CDR opposed the stay application by reiterating the findings of the Commissioner. With regard to the classification of the goods, whether under Heading No. 2005 20 00, as claimed by the appellant or under sub-Heading No. 2106 90 99, as claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of classification, prima facie, we are of the view that there is no difference between Chapter 20 of the Central Excise Tariff prior to 1-1-2005 and Chapter 20 of the Central Excise Tariff w.e.f. 1-1-2005, except that the 8-digit tariff is more detailed and specifically covers a large number of commodities in the General Group of the preparations of vegetable, fruits, nuts or other parts of the plants . In our prima facie view, therefore, Board s Circular dated 6-2-88 clarifying that the potato slices fried in edible oil, salted and packed in printed plastic pouches (or other unit containers) are classifiable under Chapter 20 is applicable. Besides this, we also find that the Hon ble Uttarakhand High Court in the case of Shriya Enteprises v. Commissioner (supra), while deciding a question as to whether potato chips are classifiable under entry, all processed and preserved vegetables, vegetable mushrooms and fruits including fruit jams, jellies, fruit squash, paste, fruit drinks, fruit juices and achar (wherein sealed containers or otherwise), has in Para 24 of the judgment held that potatoes chips are processed vegetable and would be covered under the processed vegetable a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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