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TMI Blog2016 (9) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... der Chapter 2103 of CETA'1985. 3. Shri N.Viswanathan, Ld. Advocate submits that the issue is already decided in appellants' own case vide Final order No.41820 to 41839/2015 dt. 11.06.2015 wherein appeals of assessee's including the present appellants were allowed. He placed a copy of said final order dt. 11.6.2015. He submits that the present dispute is for the subsequent period i.e. 1.4.2010 to 30.9.2014. 4. Ld. A.R reiterates the impugned order. 5. We have carefully considered the submissions of both sides and perused the records. 6. We find that 1st appellant M/s.Aachi Foods (P) Ltd.[formerly known as Naveen Products] is engaged in trading of various food/edible preparations manufactured and supplied to them by two manufacturing units namely M/s.Nazareth Foods Pvt. Ltd. (2nd appellant) and another firm M/s.Benny Products. The second appellant M/s.Nazareth Foods (P) Ltd. is also engaged in manufacture of food/edible preparations viz. Sambar/rasam powder, Kulambu Chilly Powder, Egg Curry masala etc. they marketed these goods through 1st appellant affixing the brand name "AACHI". Both the appellants were under bonafide belie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asalaetc, and the period involved is January 2004 to July 2008. They are not contestingthe classification of Bajjibondaand payasam mix (at sl.No. 24 & 27). (iv) The appellant M/s. Avitaa Food Products in appeals E/638, E/299 & 300/2011 are the manufacturers of 36 items by and large same as the above appellants. M/s. Arumuga Consumer Care are manufacturer of 14 items (same as above) 18. On perusal of records, we find that There is no dispute on the classification of pure powdered spices ie. Turmeric powder, chilli powder etc., and the dispute is only on the mixtures of one or more spices with or without added materials. The appellants contended that these products are various spices, though differently named, are classifiable under CTH 0904.9010 of chapter 9 of CETA and heavily relied on Board's Circular, test reports, expert opinions, HSN explanatory notes and various citations of High Courts and Tribunal's decisions etc. On the other hand, the Revenue contended that these products are rightly classifiable under chapter 2103as mixed condiments and mixed seasonings and heavily placed their submissions that classification should be based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssified as follows : (a) Mixtures of two or more of the products of the same heading are to be classified in that headings; (b) Mixtures of two or more of the products of different headings are to be classified in heading No. 09.10. The addition of other substances to the products of headings Nos. 09.04 to 09.10 (or to the mixtures referred to in paragraphs (a) or (b) above) shall not affect their classification provided the resulting mixtures retain the essential character of the goods of those headings. Otherwise such mixtures are not classified in this Chapter; those constituting mixed condiments of mixed seasonings are classified in heading No. 21.03. These products may be whole or in crushed or powdered form General. As regards the classification of mixtures of products of headings 09.04 to 09.10 see Note 1 to this Chapter. Under the provisions of this Note, the addition of other substances to the products of headings 09.04 to 09.10 (or to the mixtures referred to in para (a) or (b) of the Note) shall not affect their classification provided the resulting mixtures retain the essential character of the goods falling in those headings. This applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various spices with or without addition of other items are classifiable under chapter 0904 to 0910 as it retains its essential character. On perusal of the ingredients and the test reports of various masalas, we find that the percentage of spices content is 95% to 96%and the remaining are other materials. Further, we find that Board's Circular dated 15.04.1996 and 30.04.96 also clarified on the issue of classification of spices of various food mixture known as masalas and condiments falling under chapter 9 and chapter 2103. In this regard the Tribunal's Mumbai Co-ordinate Bench in the case of CCE Vs. Narendra Kumar & CO. - 2008 (232) ELT 866 (Tri.-Mum.) on identical issue of classification of masala powders allowed the appeal and discussed the Board's Circular's and distinguished the Hon'ble Andhra Pradesh High Court decision in the case of AP products. The relevant portion of the Tribunal decision is reproduced as under:- 9. On careful perusal of the cartons of the products in question we find that these products are mixtures of spices along with other ingredients. The ingredients in the products in question are combination of the spices and some more ing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We find that in the case A.P. Products (supra) the Apex court was seized with a fact, which was totally different than the facts in this case. In that case the question before the Apex court was whether the resultant product would get covered under a specific entry of the schedule to the AP Sales Tax Act. It is also seen that Apex court was deciding the issue specifically as regards the inclusion in the schedule to the AP sales tax act. In our considered view the ratio laid down by the Honble Supreme Court was in respect of the facts and circumstances, of the case before them and may not be applicable in this case. 10. It is a settled law that in cases of classification chapter notes of HSN can be considered as guide for arriving at a correct classification. The chapter notes of chapter 9 of HSN read as under : 1. Mixtures of the products of headings Nos. 09.04 to 09.10 are to be classified as follows : (a) Mixtures of two or more of the products of the same heading are to be classified in that headings; (b) Mixtures of two or more of the products of different headings are to be classified in heading No. 09.10. The addition of other substances to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses of cooking, frying, boiling or adding with water, oil or milk. Hence it is claimed that the products in question cannot be classified under sub-heading 2108.90 of CET. 3. The matter has been examined. Spices are specifically covered under Chapter 9 of Central Excise Tariff and mixed condiments and mixed seasonings under Heading 21.03 of Central Excise Tariff. Heading 21.08 of CET on the other hand is a residuary entry which refers to "edible preparations not elsewhere specified or included". While there are no definitions available for spices and mixed condiments and mixed seasonings in the Central Excise Tariff, the Explanatory Notes to the HSN give the following description of these products. Spices Spices i.e. a group of vegatable products (including seeds etc.), rich in essential oils and aromatic principles and which because of their characteristic taste are mainly used as condiments. Spices (including mixed spices) containing added substances of other Chapters, but themselves having flavouring or seasoning properties, remain in this Chapter provided the added quantity does not affect the essential character of the mixture as a spice, (Vol.1 Page 61). Condiments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or seasoning would appear to merit classification as spices or mixed condiments and seasonings. On the other hand, products like instant sambar mix, instant rasam mix, instant spiced bhath mix (Bisibelebath) or instant Kharabhath mix consisting of dal or rice flakes or sooji along with spices and other substances and which can be made up into food preparations by simply mixing and boiling/cooking in water would merit classification as miscellaneous edible preparations of Heading 2108 of Central Excise Tariff. 5. In view of the above, Board desires that classification of each product be decided on merit having regard to discussions hereinabove. It can be noticed from the above reproduced Circular of CBEC and more specifically Paragraph 4 & 5 that the classification of the spices would fall under Chapter 9. Even the understanding of the Central Board of Excise & Customs is that addition of any other ingredients to said mixture of spices should be such, a quantity, as such or after processing, are capable of being used as food preparation for human consumption, in their own right will go out of Chapter 9 and merit classification in the residuary heading 21.089. It is to be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering Technology & Applied Nutrition, so as to indicate that the masalas manufactured by the respondents, are of best quality spices and given the flavor of the spices it gives a perfect fragrant and taste to the food. This evidences are not rebutted by the Revenue even today. We find that this provisions of law is now squarely covered by the decision of the Hon'ble Supreme Court in the case of Union of India v. Garware Nylons Ltd. (S.C.) [1996 (87) E.L.T. 12 (S.C.)] wherein their Lordships were concerned with the classification of goods. Their Lordships held as under :- "In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. Especially in a case as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products which are manufactured by other assessee situated in different Commissionerates. The question of uniformity taxation is of prime importance. We find that the Hon'ble Supreme Court in the case of Damodar J. Malpani v. Collector of Central Excise as reported at [2002 (146) E.L.T. 483 (S.C.)] 16. As regards the other products like Rasam Powder, Chaat Masala, Tea Masala, we find that the reasoning given by us in respect of all other products in question as indicated in the above paragraphs would apply squarely. Ld. Jt. CDR submitted that classification of "Rasam Powder" would be covered by the decision of Tribunal in the case of MTR Food Products - 2000 (118) E.L.T. 392 (Tri.). We find that the products in question in this case is different than the product in the case of MTR Food Products (Supra). In the case MTR Foods the products was 'Rasam Mix' itself which was to be just added to boiling water, while in the case before us the Rasam Powder is to be added to complete prepared Rasam. Hence we are of the considered view that the decision of the Tribunal in the case of MTR Products (supra) may not apply to the facts and circumstances of the case before us. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is submitted that as per the instructions given in the Ministry's letter F. No. 16/4/95-CX, dated 30-4-1996 (Circular No. 205/39/96-CX) all the goods manufactured by the petitioner except branded soap-nut powder, branded sundavathal, branded appalam and unbranded Turmeric are classified under sub-heading No. 0903.10 as spices and the same has since been approved." 6. In the course of hearing of the writ petition the learned Counsels appearing for the respondents vehemently contended that the writ petition is pre-mature and should be dismissed. It is further contended that the petitioner instead of availing alternative remedies should not have approach this court. 7. It is true that where alternative remedies available, ordinarily the High Court should not entertain the matter under Article 226. Similarly even if the High Court has entertained the writ petition seeking to quash the show cause notice, it is open to the person concerned to file show cause so that the matter can be determined by the appropriate authority. While these cannot be any dispute relating to such well accepted principles, in the present case, in view of the stand taken by the respondent practical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eached its finality , is binding on both the parties, the present petitioner - appellant not being a different entity, the present show- cause notices issued in respect of the first three items above, which were the subject matter in the earlier round of litigation, are nothing but illegal Though, normally, Courts will not interfere at the stage of show - cause notice, as has been held by this Court in the earlier round of litigation itself, when the very issuance of show- cause notice is illegal, the question of subjecting the appellant - petitioner to reply to the same does not at all arise. When the products have undergone only a change in the English name , the Revenue, only to give a different interpretation to the order of this court in W. P. No. 7029 of 1996, wherein the Revenue has been given liberty to proceed against the appellant - petitioner it there is any other item manufactured by the petitioner, not coming within the aforesaid entry .... 20 . With regard to the other three products namely (1) Garlic Rice Powder, (2 ) Lemon Rice powder and (3) BajjiBonda powder, we are able to see that they did not figure in the above said writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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