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TMI Blog2019 (4) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... Suvendu Kumar Pati, Member (Judicial) Shri Gajendra Jain, Advocate with Ms Anjali Hirawat, Advocate for appellant Shri Anil Choudhary, Deputy Commissioner (AR) for respondent ORDER Per: C J Mathew The dispute in this appeal of M/s Pepsico Holdings Pvt Ltd pertains to the period between September 2007 and February 2008 and differential duty of ₹ 80,62,280/- sought to be fastened on the manufacture and clearance of 3D s choco filled snacks under section 11A of Central Excise Act, 1944, along with appropriate interest under section 11AB of Central Excise Act, 1944, besides imposing penalty of like amount under rule 25(d) of Central Excise Rules, 2002. Appellant classified the said goods under heading no. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g process which is a far cry from the solidity of the impugned goods. It would appear that the adjudicating authority was more impressed by the reference to chocolate or containing chocolate in the proposed classification which the impugned goods, admittedly, contained, without paying attention to the dimension intended by the description. 4. We may not be in concurrence with the claimed classification; however, in view of the specific classification as communion wafers , we merely have to ascertain the appropriateness of the alternative so proposed. 5. Communion wafers are produced for religious purposes which is evident from the adjective proceeding wafer in the subheading. Communion is a rite specific to the ritual of mas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems of confectionery. .. . as a prescription in law without placing the Tribunal under obligation to discharge the responsibility of the original authority in each and every dispute on rate of duty. 8. In the light of the above, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate. We cannot also, in our appellate capacity, direct or accord the latitude for invoking section 11A of Central Excise Act, 1944 by obliteration of the proceedings leading to the impugned order. The mandate of the law pertaining to recovery of duties not paid or short-pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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