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TMI Blog2017 (6) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... in question under Tariff Heading 19053219 which has been correctly classified by the appellants - appeal allowed - decided in favor of appellant. - E/578/2010 & E/57651/2013 - FINAL ORDER NO. 53191-53192 /2017 - Dated:- 23-2-2017 - Mr. Ashok Jindal, Member (Judicial) and Mr. V. Padmanabhan, Member (Technical) Sh. B.L. Narasimhan, Advocate for the Appellant(s) Sh. R.K. Majhi and Govind Dixit ARs for the Respondent(s) ORDER These appeals have been directed against the impugned order classifying the product namely Milk Treat under Tariff Heading 19053211. 2. The facts of the case are that the appellants are engaged in manufacturing of cocoa and cocoa products and wafers products falling under Chapter 18 and 19 of the Central Excise Tariff Act, 1985. The appellant manufactured during the period in question Milk Treat having ingredients sugar, liquid glucose, milk solids, golden syrup, partially hydrogenated vegetable fats/cocoa butter, emulsifiers (soya lecithin), wheat protein, synthetic food colour and added artificial flavouring substances. The appellants were classifying under Chapter Tariff Heading 19053219 and discharging their duty liability accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in the case of Ravalgaon Sugar Farms Ltd. Vs. CCE, Ahmedabad 2000 (121) ELT 488 (Tribunal) . He further submitted that the Ld. Commissioner has held that Cocoa butter is same as Cocoa. As per HSN explained note under Chapter 17, it has been clearly stated that Cocoa butter is not regarded as Cocoa, therefore, the Ld. Commissioner has fell in error. He further submitted that the White Chocolate is classified under Chapter Heading 1704 as Sugar Confectionary at the suppliers end and the same has not been disputed therefore, the demand is not sustainable. He further submitted that for the period May, 2002 to December, 2001, the issue has been settled in the favour of the appellant and the same has been accepted by the Department. Therefore, the Department cannot take a contradict of stand against the appellant. He further submits that the appellant has always classified the product Milk Treat‟ as per the order of the ld. Commissioner (Appeals) dt. 31.01.2004 and no dispute has been raised. To support this contention, he relied upon the decision of Jayaswal Neco Ltd. Vs. CCE, Nagpur, 2006 (195) ELT 142 (SC) . He also relied on the test report evidencing that product Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use, sealing wafers, rice paper and similar products. 1905 10 00 - Crispbread Kg. Nil 1905 20 00 - Gingerbread and the like - Sweet biscuits; waffles and wafers: Kg. NIL 1905 31 00 Sweet biscuits Kg. 16% 1905 32 - Waffles and wafers: - Communion wafers: 1905 32 11 Coated with chocolate or containing chocolate Kg. 16% 1905 32 19 Other Kg. 16% 1905 32 90 Other Kg. 16% On plain reading of the said Tariff, we find that the wafers coated with Chocolate or containing Chocolate are classifiable under Tariff Heading 19053211, therefore, we have to find out whether the product in question has been coated with Chocolate or containing Chocolate. 10. The Chocolate has been classified under Chapter Heading 1806. The Chapter Heading 1806 is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issue, the explainery notes to Chapter 17.04 are also relevant which are reproduced here as under:- 17.04 Sugar confectionery (including white chocolate), not containing Cocoa. 1704.10 Chewing gum, whether or not sugar-coated. 1704.90 Other This heading covers most of the sugar preparations which are marketed in a solid or semi-solid form, generally suitable for immediate consumption and collectively referred to as sweetmeats , confectionery or candies . It includes, inter alia : (1) Gums containing sugar (including sweetened chewing gum and the like) (2) Boiled sweets (Including those containing malt extract). (3) Caramels, cachous, candies, nougat, fondants, sugared almonds, Turkish delight. (4) Marzipan. (5) Preparations put up as throat pastilles or cough drops, consisting essentially of sugars (whether or not with other foodstuffs such as gelatin, starch or flour) and flavouring agents (including substances having medicinal properties, such as benzyl alcohol, menthol, eucalyptol and tolu balsam). However, throat pastilles or cough drops which contain substances having medicinal properties, other tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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