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TMI Blog2016 (9) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... The total period involved is 2003-2004 to February, 2007. 3. There are following main issues which require consideration and decision by this Tribunal: (i) Classification of Milk Shake Mixes. (ii) Classification of flavoured syrups/fruit syrups/Squashes. (iii) Goods sold without brand name - Eligibility to claim benefit of exemption Notification No. 3/2005-CE dated 24.2.2005 (Sr. No. 9) in respect of chocolate syrup, Butter Scotch, Blue curacao, Grenadine, Mint, Orange, Triple Seed, Caramel, Natural Caramel, Vanila, Lime (all falling under Chapter Heading 2108.91/21069040) on the ground that the same do not bear brand name of the assessee/appellant. (iv) Goods sold without brand name- Eligibility of exemption benefit under Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue has no relevance to the present dispute. We, therefore, classify the products SSM and MSM under sub-heading 0404.90 of the Central Excise Tariff. The other two products i.e. coffee creamer and cream packed are also classified under sub-heading 0404.904. There is no reason given in the impugned order for classifying the product under Chapter 19. This is not disputed by the Revenue. We, therefore, set aside the order of the Commissioner and classify the products under sub-heading 0404.90. 6.1.1 Considering above discussions and the CESTAT s decision in case of Amrit Foods (supra) endorsed by Hon ble Apex Court we hold that the subject items, Milk Shake Mixes are rightly classifiable under Chapter Heading 0404 only. 6.2 Classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect goods. We have also gone through the contents of Chapter 21 of Central Excise Tariff where Miscellaneous Edible Preparations are covered. The main submission of the appellant is that subject goods have fruit juice content more than 25%; therefore, they have to be classified as preparations of fruits and be classified under Chapter 20 only. The Revenue submits that though the assessee submitted the purchase invoices of fruits that does not lead to the conclusion that the said fruits were used in the manufacture of subject goods viz. fruit syrups etc. as the assessee is also engaged in the manufacture of other fruits based products like Jam, Jelly, Chutney where fruits are basic ingredients. 6.2.5 From the case record and the evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed; and so on. 6.2.6 For the present purpose, the rival entries for classification are Chapter 20 (where the assessee wants classification) and Chapter Heading 2106 (where Revenue wants to classify the subject items). We find that the appellant has not given complete ingredients of the subject items; they have only conveyed that products have got more than 25% fruit contents. The Explanatory Notes to HSN for Chapter Heading 2009 inter alia mention that wherever greater quantity of water has been added, the resultant diluted product may have the character of the beverages of Heading 22.02, but the classification under Chapter 22.02 has not been argued by any side in the present proceedings i.e. either by the Revenue or by the assessee/appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the goods ; the appellant claims that goods were unbranded whereas the Revenue says that there was no sufficient evidence produced by the appellant to prove that the goods were unbranded. 6.3.2 Considering facts and the submissions of both sides, we remand the case back to the original adjudicating authority for decision afresh on this issue within three months of receipt of this order, where the appellants would be given opportunity of hearing and production of evidence, if any, in respect of branding or unbranding of the goods. 6.4 Goods sold without brand name - Eligibility of exemption benefit under Notification No. 3/2005-CE (Sr. No. 10) for the items Mixed Seasoning Chinese Flavour: 6.4.1 The appellant says that both the condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant date. Consequently, demand beyond the period of one year from the relevant date is time barred as per the provisions of law of Central Excise. 6.5. 2 As there is no wilful suppression or mis-statement with intention to evade payment of duty of excise by the appellants, the penalties imposed of Rs. 71,83,194/- on the appellant No. 1 under Section 11AC of Central Excise Act, 1944 and of Rs. 2,00,000/- on appellant No. 2, Shri Rajiv Behl, Director under Rule 26 of Central Excise Rules, 2002 are hereby dropped. 7. The appeal of the appellant No. 1, M/s Fun Food (P) Ltd. in respect of penalty under Section 11AC of Central Excise Act is allowed; Milk Shake Mixes have been held to be classifiable under Chapter Heading 0404 and on cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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