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TMI Blog2018 (7) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... CE dated 20.03.2009. (ii) Appeal No. E/1645/2010 arising out of Order-in-Appeal No.49/2010 (H-IV) CE dated 28.04.2010 (iii) Appeal No. E/1770/2011 arising out of Order-in-Appeal No.45/2011 (H-IV) CE dated 27.04.2011 2. Heard both sides and perused records. 3. The brief facts of the case after filtering out unnecessary details are that appellant herein are manufacturers of wafers with a cream layer made out of cocoa powder, sugar, flavour, emulsifiers and hydrogenated vegetable fats and they sell the same as choco-dipped wafer layers and wafer covered with delicious chocolate layer. According to the appellant these goods are classifiable under Central Excise tariff heading 1905-32-19, while the Department wants to classify it under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and flavour. Therefore the layer contained in the wafers is not of chocolate but of cocoa. In fact, they cannot market it as wafer containing chocolate in view of the specific prohibition under the Prevention of Food Adulteration Act. Since they cannot market the wafers as the ones containing chocolate their wafers should not be classified so but should be classified as other wafers and should be charged to the central excise duty accordingly. 5. Show Cause Notices were issued and demands were confirmed for the differential duty along with interest under Section 11AB. Penalty was also imposed on the appellant for not discharging the appropriate duty. Aggrieved, the appellant filed appeal before the Commissioner (Appeals) who upheld the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal and said that classification of the goods must be based on the Central Excise tariff with some reliance being placed on the explanatory notes of the HSN. They cannot be classified based on the definitions given in other laws as the objectives of the different statutes are different and so are the statutory definitions therein. Considering arguments put forth by both sides and after perusal of records, we find in the case of Brittania Industries - 2015 (322) ELT 182 (SC), the Hon'ble Supreme Court was remanding the matter back to the Tribunal, observed in Para No.4 as follows: "4. We find from the impugned order [2005(183) ELT 257 (Tribunal) of the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another statute. As aforesaid, the object of the Excise Act is to raise revenue for which various goods are differently classified in the Act. The conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute for non-levy of excise duty, thereby causing a loss of revenue. The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding of "ice-cream" and thus, may require different standards for a good to be marketed as "ice-cream". These provisions are for ensuring quality control and have nothing to do with the class of goods which are subject to excise duty under a particular tariff e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or in liquid, paste, powder, granular or other bulk form in containers or immediate packings, of a content exceeding 2 kg. - Other, in blocks, slabs or bars 1806.31 - Filled 1806.32 - Not filled 1806.90 - Other Chocolate is composed essentially of cocoa paste and sugar or other sweetening matter, usually with the addition of flavouring and cocoa butter; in some cases, cocoa powder and vegetable oil may be substituted for cocoa paste. Milk, coffee, hazelnuts, almonds, orange-peel, etc., are sometimes also added." 13. As may be seen from the above neither it mandates to have cocobutter in the mixture for it to be chocolate nor is there any prohibition on the use of vegetable fat other than coco-butter in the mixture for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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