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TMI Blog2016 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... lly a solidified liquid and while using it has to be in a liquid form to sip. - There is no nfirmity in the Order-in-Appeal classifying the product MILMA SIP as classifiable under heading 2105 as the said product contains about 75% water, cane sugar, sweetening agents, colours etc. - Decided against the assessee. - E/202/2003-DB - Final Order No. 20595/ 2016 - Dated:- 29-7-2016 - Shri S. S. Garg, Judicial Member And Shri Ashok K. Arya, Technical Member For the Appellant : Shri Manoj Pillai, Advocate For the Respondent : Smt Ezilmathi, AR ORDER Per S. S. Garg The present appeal is directed against the order of the Commissioner (Appeals) vide which he set aside the Order-in-Original. Briefly the facts of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Sixty Two only). Hence the present appeal. 2. The learned counsel for the appellant submitted that MILMA SIP is rightly classifiable under heading 04.01.11 CET and if it is not possible to classify under that heading then the next possibility is to classify under heading 04.04.90. He also submitted that the impugned item cannot be taken out of the chapter 04 since it is a Dairy Product and its classification as Edible ICE is factually and legally wrong. He further submitted that MILMA SIP is a product to be sipped and not licked as Ice Cream or Edible Ice. MILMA SIP is a milk based product and Edible Ice is a water-based product. MILMA SIP is a Dairy product and hence falls under chapter 4. Further Chapter 21 deals with miscellaneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. The finding of the original adjudicating authority is that MILMA SIP being milk based product hence rightly classifiable under 04.04 and does not attract any duty. On review of the Order-in-Original, the Deputy Commissioner challenged the decision of the adjudicating authority and on appeal the learned Commissioner (Appeal) reversed the Order-in-Original and held that MILMA SIP is Edible Ice falling under 21.05 and not under 04.04 mainly on the ground that in MILMA SIP milk constituent is less than 25% and therefore it cannot fall under chapter 04. As per AR product is bought and sold as solid product and it is like a lollipop. But as per asessee, the product is removed in liquid form from the factory and it continued to be a milk produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilkmaid Rabri Mix was having 57.5% of Milk Powder. Hence the constituent of milk predenominate and CEGAT correctly held that the products are classifiable under heading 04.04. In the instant case milk constituent is only about 25% and hence the above CEGAT decision is clearly distinguishable and cannot be made applicable in the instant case. Further, the respondents have not disputed that the classification of an excisable product has to be done with reference to the form and condition in which the goods are cleared from the factory. As per the report of Deputy Commissioner, the product is in solid form and is removed in solid form in insulated boxes. Though the respondents pleaded that it is ready for clearance in liquid form as soon as it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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