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TMI Blog2008 (8) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... an, Member (T) S/Shri K.S. Ravi Shankar and R. Dakshina Murthy, Advocates, for the Appellant. Shri K. Sambi Reddi, JDR, for the Respondent. [Order per: T.K. Jayaraman, Member (T)]. - These appeals have been filed against the following orders which are given in the tabular column. Appeal No. OIO/OIA Duty Education Cess Penalty Fine E/71/2007 OIO No. 8/2006 dt. 1-12-2006 Rs. 1,75,34,808/- Rs. 95,406/- Rs. 1,76,30,214/- Rs. 3,000/- E/888/ 2007 OIA No. 39 40 dt. 31-8-2007 Rs. 19 98 332/- Rs. 39,967/- Rs. 10000/- Nil E/891/2007 Rs. 15,39,053/- Rs. 30,781/- Rs. 15,000/- Nil 2. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DR invited our attention to the manufacturing process of the impugned item. The impugned item is known as "Poha". Its manufacturing process is as follows: The process adopted for the manufacture of Poha/Avalakki by the appellants are as follows: * First raw paddy is procured which contains high moisture and impurities. * It is cleaned and then soaked in water for about 3 to 5 hours. * Then the water is drained and the paddy is kept in heaps for 2 to 3 hours for brining about equal moisture. * Later on it is heated in the electrical rotating drums using sand medium preheated to about 130 degree Celsius. * This process brings softness to the paddy. * Then the paddy is fed into the edge runner having two rollers for pressing whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egorically held that Poha whether of Rice, Maize or Wheat merit classification under Heading 19.04 of the Central Excise Tariff. In view of the above finding, the learned Adjudicating Authority had confirmed the demand. There was also an issue of clubbing of the clearances of other two units, on account of that the SSI benefit was also denied. Thus, the duty was confirmed in the Orders passed by the Commissioner. Similarly, the lower authorities confirmed the demand for different periods and they have been upheld by the Commissioner (A), which are also impugned. Since all impugned orders deal with the same issue, we are taking them up together for common order. 4. The learned advocate stated that the Adjudicating Authority has not prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with a cooking. But in the Favourite Food Products case (supra), the Adjudicating Authority himself has accepted that there was cooking in pressure cooker but that is not the case in these present appeals. Therefore, the facts of the Favourite Food Products case (supra) can be distinguished. 4.2 Further, the learned advocate relied on the decisions in the case of Commissioner of Commercial Tax, Indore Other v. TTK Healthcare Ltd. - 2007 (7) VST 1 (SC) wherein it has been held that process of frying and addition of preservatives to be applied before 'fryums' become consumable. Fryums cannot be considered as cooked food. Even the High Court held that fryums to be cooked food but the Hon'ble Apex Court reversed the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seen that beyond the processes mentioned in Chapter 11, no further process has been carried out. Moreover, the Favourite Food Products case has been overruled by the Larger Bench decision in the Mahavir Food Products case where the Chapter Notes of both 11 and 19 have been elaborately examined and it was held that when there is no process beyond that which is mentioned in Chapter 11, the item cannot be classified under Chapter 19. In our view, we cannot say that mere heating of the paddy in the rollers before making avalakki is a process of cooking and which is something more than what is mentioned in Chapter 11. Moreover, many decisions have been cited to show that avalakki is also a particular form of rice. Even in the export of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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