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TMI Blog2017 (2) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... r CSH 2108.99 of CETA, 1985, as Ready to Eat Food Products . These products were being cleared by the appellants claiming the benefit of Nil rate of duty under Notification No.6/2002-CE dated 1.3.2002, vide Sl. No.14 as amended from time to time. The appellants were issued a show-cause notice dated 8.3.2005 by the Commissioner alleging that the impugned products manufactured and cleared by the appellants, though classifiable under CSH 2108.99 of CETA, 1985, were not entitled to the benefit of Notification No.6/2002-CE dated 1.3.2002, vide Sl. No.14, inasmuch as the impugned products are not similar to the products viz., Mithais, Misthans, Namkeens, Bhujia, Mixture, etc., for which the exemption was made available under the said Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations: "On a careful consideration, we are of the considered opinion that the Commissioner ought to have considered the alternative prayer for reclassification of the item under Chapter sub-heading 2001.10 and also should have considered the claim of benefit of Notification No.6/2002 dated 1.3.2002 vide Sl. No.9. The Commissioner has also not considered the aspect pertaining to treating the duty as cum duty. Therefore, we are of considered opinion that the impugned order is required to be set aside and the matter remanded for de novo on all points ." In terms of the above said order of Hon ble Tribunal, de novo proceedings were held before the Commissioner on 7.3.2007. The appellants appeared before the said Commissioner and subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t paneer darbari is predominantly a preparation of vegetables with some percentage of paneer and other substances. He relied upon a copy of the composition certificate issued by the appellant s own laboratory to the effect that the composition of the product paneer darbari is as follows: 58.69% - Vegetables 3.40% - Water and 37.01% - Others He argued that since this product is predominantly made up of vegetables, it is rightly classifiable under tariff heading 2001.10 as per the Rules of Interpretation of Central Excise Tariff. He relied upon the Rule 3(b) and submitted that since the composition is predominantly of vegetables, the product should be classified as though it is made up of vegetables. This would classify the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) Learned advocate, however, submitted that they are not pursuing the issue of classification of the following products. (a) Pongal, (b) Basmati rice and kadi pakodi, and (c) kadi pakodi. 4. Learned AR supported the orders passed by the adjudicating authority. 5. First, we consider the classification of the product paneer darbari . The main thrust of the argument advanced by the appellant is that on the basis of the certificate of composition, vegetables predominate in the product. This certificate has been issued by the appellant s own laboratory. The product is a preparation making use of tomatoes, water, paneer, fresh cream, tomato puree, white butter, spices, salt, sugar, etc. The predominant composition is as follows: 58.69% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lassified under respective chapter headings and assessed independently on merits. The combo pack consists of two entirely different products which are put up as a set for use together. In terms of Rule 3(b) of the Interpretative Rules, classification of set has to be made in accordance with that attribute which, the components taken together, can be regarded as conferring the set as a whole its essential character. We note that basmati rice is packed either with dal tadka or rajma masala with an intention of consuming the two together as a meal. Since the essential character of the meal arises out of basmati rice (the subji is eaten along with the rice), we are of the view that the combo pack has to be classified under Heading 21.08 (2106 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly classifiable under 21.08 as held in the impugned order. They will not be entitled to the benefit of exemption under Sl. No.14 of the Notification ibid. (c) Duty will be payable on the combo packs on the basis of the MRP endorsed therein for the combo pack as a whole. (d) No orders are passed in respect of products, pongal; kadi pakodi; and basmati rice and kadi pakodi; since the appellant is not pursuing the appeal. 7.1 The impugned order is modified to the above extent. The original adjudicating authority is directed to re-quantify the demand covered in both the impugned order in line with the above discussions. However, no penalty will be leviable on the appellant, since this is a classification dispute. ( Order is pronounced in O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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