9911796707
TMI Blog2016 (10) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary, 1991 to April, 1991, May, 1991 to 24.07.1991 and 02.06.1998 to 17.07.1998, the appellants had cleared dairy whitener without payment of duty taking the plea that their product is not skimmed milk powder and was exempted under Notification No.04/90 dt. 20.03.1990. The Department on the other hand alleged that the dairy whitener is nothing else but skimmed milk power attracting Basic Excise Duty of 10% ad-valorem and 5% as SED. The appellants filed an appeal in the Hon'ble Punjab & Haryana High Court against the Order-In-Original No. 30/AC/91 dt. 05.04.1991. The Hon'ble High Court vide order dated 02.05.1991 stayed the operation of the Order-in-Original dt. 05.04.1991. Subsequently, three Show Cause Notices were issued in which it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision, their product is classifiable under 0410.19, he argued. 5. The Ld. AR reiterated the submissions of the order of the Ld. Commissioner (Appeals) and relied upon the decision of this Tribunal in the case of Mehsana Dist. Co-OP. Milk Producers' Union Ltd. Vs. CCE, Ahmedabad - 2004 (167) ELT 456 (Tri.-Del). 6. Heard both sides and considered the submissions. 7. On careful consideration of the submissions made, we find that two issues involved in the matter whether diary whitener is classifiable under chapter heading 0401.13 or under chapter heading 0401.19 of the Central Excise Tariff and whether the appellant is entitled for the benefit of Notification No.04/90 dated 20.3.1990 or not? 8. With regard to the issue of classification, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No.4/90 dated 20.3.1990 at Sl.No.2. Accordingly, the demand for the period January, 1991 to April, 1991 and May, 1991 to 24.7.1991 are not sustainable and hence the same is set aside. 10. We find that the Notification No.4/90-CE dated 30.3.1990 was superseded by Notification No.16/91-CE dated 25.7.1991, which exempted all goods under Tariff Sub Heading 0401.13. However, Notification No.16/91-CE was rescinded by Notification No.64/94-CE dt.1.3.1994. Therefore, the appellant is not entitled for the benefit of notification for the period 2.6.1998 to 17.7.1998. Consequently, after classifying the dairy whitener under chapter heading 0401.13 as milk powder other than skimmed powder specially prepared for feeding infant, the demand of Rs. 1,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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