9911796707
TMI Blog2022 (3) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 704.90 - Other This heading covers most of the sugar preparations which are marketed in a solid or semi-solid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionery or candies, inter alia, - (i) --- (ii) ---- (iii) ---- (iv) ---- (v) ----- (vi) White chocolate composed of sugar, cocoa butter, milk powder and flavouring agents, but not containing more than mere traces of cocoa (cocoa butter is not regarded as cocoa) 22.2 As per Tariff Entry 1704 refers to sugar confectionery (including white chocolate) not containing cocoa. Chapter 17 does not include sugar confectionery containing cocoa or chocolate (other than white chocolate) in any proportion and sweetened cocoa powder (Heading 18.06). HSN Explanatory Notes to Heading 1704 90 other says that the heading covers most of the sugar preparations which are marketed in a solid or semi-solid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionery or candies. It includes inter alia white chocolate composed of sugar, cocoa butter, milk powder and flavouring agents but not containing more than mere traces of cocoa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the submissions of Learned Senior Counsel are not correct and the case laws relied upon to say that in the absence of statutory definition, commercial/trade parlance understanding has no relevance. 24. Now, the case hinges on the only issue that is whether or not the impugned products merit classification as white chocolate in terms of the HSN Explanatory Notes. It is the averment of the appellants that they have not used cocoa butter at all in Milky bar and have discontinued the use of same in Eclairs w.e.f. 1-1-2008. Learned Commissioner refers to sample of packing material (polybag and jar labels) of Nestle Milky bar Eclairs a letter submitted by the appellants on 25-3-2009, observes that the packing material shows that the ingredients are Liquid Glucose, Sugar, Milk Solids, Partially Hydrogenated Vegetable Oils, Cocoa Butter, Salt and Emulsifiers (soya Lecithin & 471). On going through the available case records, it is seen that the above letter of the appellants refers to a letter dated 23-3-2009 written by the Department wherein it was specifically asked to supply the wrappers/packing materials in respect of Milky bar Eclairs before January, 2008. In this context, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aware of the judgment of Mumbai Bench of the Tribunal in the case of Nestle in 2008. SCN came to be issued in October, 2009. There was delay on the part of the Department also and moreover, no samples were drawn and test conducted. Therefore, we find that the Department has not discharged the burden of proof that the impugned products contained cocoa butter and thus were not eligible for exemption in terms of the Notification cited above. 26. On going through the affidavit signed by the appellants and exhibits at pages 179, 181, 183, we find that the ingredients contained in Nestle Milky bar before and after 1-1-2008 are sugar, partially hydrogenated vegetable oils, milk solids and soya lecithin contains added artificial flavouring substance. Exhibit at Page 179 is extracted as below : 26.1 The ingredients of Nestle Milky bar Eclairs before and after 1-1-2008 are as follows : Before 1-1-2008 After 1-1-2008 (a) Liquid Glucose (b) Sugar (c) Milk Solids (d) Partially Hydrogenated Vegetable Oils (e) Cocoa Butter (f) Salt (g) Emulsifiers (Soya Lecithin & 471) (a) Liquid Glucose (b) Sugar (c) Milk Solids (d) Hydrogenated Vegetable oils (e) Salt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances and the background in which it is being done and what is the stand of the Mangalore Commissionerate in this regard. Further, the classification of Nestle Milky bar and the applicability of the exemption Notification No. 6/2002-C.E. as amended or Notification No. 3/2006-C.E. is not an issue before us. Hence, we refrain from offering any comments in the matter. We have already held that the presence of the partially hydrogenated vegetable oil in Milky bar Choo will not take it out of the purview of White Chocolate and we have given detailed reasons and justifications for holding so". 28. We find that the instant case, the issue which remains to be decided is as to whether the impugned products contained cocoa butter so as to be categorised as White Chocolate under CETH 1704 and thus rendering them ineligible for exemption contained in the Notification Nos. 6/2002-C.E., 3/2006-C.E. and 12/2012-C.E. Therefore, we find that the facts of the present case are different from those dealt by the Co-ordinate Bench in the case of Nestle Products decided in 2008 (supra) and therefore, we find that the ratio of the decision has no precedent value as far as this case is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
