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TMI Blog2009 (2) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 24-2-2009 - Ms. Jyoti Balasundaram, Vice-President, S/Shri M.V. Ravindran, Member (J) and A.K. Srivastava, Member (T) Shri J. Cama, Advocate, for the Appellant. Shri K.M. Mondal, Consultant, for the Respondent. [Order per : M.V. Raindran, Member (J)]. - The following question has been referred to the Larger Bench for resolving the issue: "Whether for a product to be classifiable under Chapter Heading 0404 of the Central Excise Tariff as it existed prior to 31-3-2005, addition of vitamins was permissible under Note 4 and mere addition of vitamins would not take the product out of Chapter 4 as held by the Tribunal in the case of Nestle India Ltd., Dalmia Industries and Amrit Foods, or the product will go out of Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 (202) E.L.T. 545 (T) took note of the decision of the Tribunal in the case of Frozen Foods Pvt. Ltd., still held that addition of stabilizers in itself will not take out the products out of Chapter Heading No. 04.04. 4. Learned Consultant appearing for the revenue would submit that decision of the Tribunal in the case of Frozen Foods Pvt. Ltd., 1992 (59) E.L.T. 279 was upheld by the Apex Court as reported at 1998 (98) E.L.T. 295 (S.C.). It is his submission that once the apex court upholds a decision directly on the point in a case, it is the law of the land. It is the submission that the Central Excise Tariff does not contemplate addition of the vitamins. It is the submission that this was a conscious deviation from the HSN. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 4. We may read the same. Dairy Products (A) Milk, i.e. full cream milk and partially or completely skimmed milk. (B) Cream. (C) Buttermilk, curdled milk and cream, yogurt, kephir and other fermented or acidified milk and cream. (D) Whey. (E) Products consisting of natural milk constituents, not elsewhere specified or included. (F) Butter and other fats and oils derived from milk; dairy spreads. (G) Cheese and curd. The products mentioned at Items (A) to (G) above may contain, in addition to natural milk, constituents (e.g. milk enriched in vitamins or mineral salts), small quantities of stabilising agents which serve to maintain the natural consistency of the product during transport in liquid state (disodium phosphat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while deciding the classification of a product under said Chapter No. 4. 9. In the case of Frozen Foods Pvt. Ltd., (supra), Tribunal at Paragraph 38 held as under: "We now proceed to take up the other points raised by Shri Lakshmi Kumaran during the hearing and incorporated in his written note of propositions on behalf of the respondents. We agree with the learned SDR that this Tribunal has taken the view that questions relating to tariff classification being of general interest, and, it being the duty of the Tribunal to decide the correct tariff classification, fresh arguments for this purpose can be taken up before the Tribunal. We accordingly accept the submissions of the learned SDR on this question. So far as the applicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the facts in those cases are different. 11. Since the Apex Court has already settled an identical issue in dispute, to our mind nothing remains in the matter. 12. In view of the above the reference is answered as under: "Prior to 31-3-2005 addition of vitamins in a product will take it out of purview of chapter 04." (Pronounced in Court 24-2-09) 13. [Per A.K. Srivastava, Member (T)]. - I agree. I may only add here that in the recent judgment in the case of Camlin Ltd. v. C.C.E., Mumbai - 2008 (230) E.L.T. 193 (S.C.), the Hon'ble Supreme Court has held that it is settled law that when entries in the HSN and the Tariff are not aligned, reliance cannot be placed upon HSN for the purpose of classification of goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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