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TMI Blog2017 (3) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... ic aseptic pineapple concentrate and orange concentrate was not disclosed to the department. The use of the above ingredients in the manufacture of the drinks was not controverted in the adjudication. Nor that was controverted before Tribunal. Appellant established that without need of the above concentrates, no one shall import. Therefore that fact alone is enough to hold that concentrates were indispensable for use in manufacture of drink by the appellant - The appellant failed to show purchase of fruit pulp or fruit juice to use the same in the manufacture of drinks. There was no fruit pulp or fruit juice used in the manufacture of drinks in absence of any purchase record produced before any of the Authority to prove purchase of fruit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from its Bangalore Unit on stock transfer basis and using such juice, it had manufactured Maaza Orange and cleared the same without payment of excise duty claiming exemption under Notification No.3/2001 dated 1.3.2001 and Notification No.6/2002 dated 1.3.2002 as fruit juice based drinks. Appellant had also informed the Authority below that it was importing Authentic Aseptic Orange juice concentrate and Authentic Aseptic Pine Apple Concentrate as well as Orange fruit juice and pine apple fruit juice extract for manufacture of Maaza Orange drink and Maaza Pineapple drink respectively. 1.3 Revenue Authority was of the view that although Orange fruit juice or Pineapple fruit juice were added to make aforesaid drinks the imported Authentic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay excise duty of ₹ 3,76,561/- in terms of Rule 4, 6, and 8 of Central Excise Rules, 2001 and 2002, as the case may be, read with proviso to section 11A(1) of Central Excise act, 1944. So also holding that the appellant having contravened the provisions of Rules 4, 6 and 8 of Central Excise Rules, 1944, and also suppressed the fact of use of concentrates in the manufacture of the drinks and mis-classified the impugned goods, penalty under section 11AC of Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002 to the extent of equal amount of duty demandable was imposed interest was payable under Section 11AB of Central Excise, 1944. Further, penalty of ₹ 1000/- (Rupees Ten thousand only) was imposed under R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant's goods were not at all aerated water with sugar and sweeting matter but were fruit pulp and fruit juice drinks. The nature of the goods manufactured by the appellant was known to the Department for which the adjudication suffers from bar of limitation. 5. Revenue on the other hand says that the goods were found to have been manufactured using the imported concentrates and both concentrate having been used as per the statement of the Assistant Manager, Shri Varadharajan, as has been recorded by the adjudicating authority in para 6.2 of the order, the goods subscribe to the Tariff Heading 2202.99. Shri Varadharajan stated that Maaza Orange and Maaza Pineapple were manufactured out of fruit juice concentrate. He also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and fruit concentrate. He also explained that Maaza Orange is manufactured using the ingredients namely treated water, sugar, Maaza Orange concentrate and orange fruit (juice extract). Similarly, Maaza Pineapple drink is manufactured using the inputs namely treated water, sugar, Maaza Pineapple concentrate and pineapple fruit juice extract. He further stated that the Maaza Orange and Maaza Pineapple drinks were made out of pure authentic aseptic pineapple and orange fruit juice concentrate. The import of an authentic aseptic pineapple concentrate and orange concentrate was not disclosed to the department. The use of the above ingredients in the manufacture of the drinks was not controverted in the adjudication. Nor that was controverted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading 2202.40. There was no fruit pulp or fruit juice used in the manufacture of drinks in absence of any purchase record produced before any of the Authority to prove purchase of fruit pulp or fruit juice was made by appellant for that purpose. Accordingly, the appellant is disentitled to the benefit of the exemption notification having subscribed its goods to Tariff Heading 2202.99. 10. The test for determining classification of the goods under Tariff Heading 2202.40 is that the basis of the drink ought to be fruit pulp or fruit juice. The appellant having used the concentrate imported to manufacture its drinks and was deliberately classifying the same under a wrong entry, failed to meet the condition of the notification. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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