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TMI Blog2001 (3) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Tariff Act. 2.The appellant disputed the proposed classification under Tariff Heading 21.08 and contended that the three products mentioned above were classifiable under Chapter Heading 04.04 and not elsewhere. Adjudicating authority by its Order-in-Original No. 179/96, dated 4-12-1996 confirmed the levy of duty mentioned in the show cause notice by classifying the products under Chapter sub-heading 2108.90. Appellant took up the matter before the Commissioner (Appeals). Appellate authority interfered with the order-in-original by passing Order-in-Appeal No. 73-CE/DLH/97, dated 15-5-1997. The Commissioner came to the conclusion that the products do not appear to be classifiable under Chapter 21 as held by the Assistant Commissioner. It was also observed that it is not possible to uphold the manufacturer's classification under Heading 04.04. Consequently, the Assistant Commissioner was directed to examine the matter afresh and decide the issue de novo, in the light of the observations made by that authority in the appellate order. Apprehending that the observations made by the Appellate Commissioner in the order will go against the interest of the manufacturer, they app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading 2108.90 which would attract Central Excise duty of 20% ad valorem. The adjudicating authority found the goods to be classified under Chapter sub-heading 2108.90. Consequently, differential duty claimed in the show cause notice was confirmed. The appellate authority in unmistakable terms came to the conclusion that Chapter 21 does not come into the picture for classifying the subject goods. It is settled law that recovery of duty under Tariff Heading different from that which was proposed in the show cause notice is not permissible vide decision of CEGAT in Collector of Central Excise v. Bright Brothers Ltd. - 1991 (52) E.L.T. 385. This order of the Tribunal has been upheld by the Supreme Court as seen from 2000 (116) E.L.T. A67. In view of this legal position, the differential duty claimed from the appellant cannot be now recovered from them. When the appellate authority found that the subject goods do not fall under Chapter Heading 21.08, there was no justification for directing the adjudicating authority to requantify the duty recoverable from the manufacturer. In other words, when the appellate authority disagreed with the proposed classification made in the show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985 itself vide Collector of Central Excise, Shillong v. Wood Craft Products Ltd. - 1995 (77) E.L.T. 23. In this case, their Lordships observed : "Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention." In Collector of Central Excise, Hyderabad v. Bakelite Hylam Ltd. - 1997 (91) E.L.T. 13, the Apex Court opined : "In case of any doubt, the HSN is a safe guide for ascertaining the meaning of any expression used in the Act (Excise Tariff Act)." In view of this settled legal position, we have to examine the relevant items of goods mentioned in the Tariff sub-headings. 8.Chapter 4 of the Central Excise Tariff Act deals with dairy produce; edible products of animal origin, not elsewhere specified or included. This Chapter has two Chapter Notes which are verbatim identical to the Chapter Notes attached to Chapter 4 of HSN which deal with the same goods, among others. Over and above the above mentioned two Chapter Notes, the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter Note 4 quoted above. So, one has to examine the nature and function of the above mentioned acids. Glossary of terms for Sensory Evaluation of Cocoa Materials produced by the appellant shows that citric and tartaric acids are basic flavours. The tartaric acid and citric acid shall fall in the category of principal additives. One of the uses of citric acid as per Hawley's Condensed Chemical Dictionary 11th edition revised by N. Irving Sax and Richard J. Lewis, Sr. is as flavouring extracts. The same book gives the use of tartaric acid as acidulant in foods. Chambers 21st Century dictionary explains it as to make something slightly acid or sour. Thus, these acids are flavouring agents. Their addition to the milk product cannot take that product outside Chapter Heading 04.04. 12.Chapter Heading 19.01, inter alia, takes within its ambit food preparations of milk and cream, not containing cocoa powder or containing cocoa powder in a proportion by weight of less than 10%, not elsewhere specified or included. This entry shows that food preparations of milk and cream will fall under Heading 19.01 only if it is not elsewhere specified or included. HSN also contains identical entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in Frozen Foods Pvt. Ltd. v. Collector of Central Excise, Pune - 1998 (98) E.L.T. 295. We are not in a position to agree with the learned Departmental Representative for the simple reason that the product that was considered by the Tribunal was entirely different in character and composition compared to the one on hand. "Surje" with which the Tribunal was concerned contained mainly proteins, vitamins, small amount of sucrose, peptides, etc. It was an edible preparation for human consumption, etc. Neither the Tribunal nor the Supreme Court was concerned with a milk product, which squarely fell within Chapter Heading 04.04. In paragraph 38 of the final order, this Tribunal gave the reason for taking it out of Chapter 4 on the ground of addition of vitamins. Further, paragraph 42 of the order of this Tribunal clarifies the position that "Surje" was to be classified under Chapter 21 because protein concentrates can only fall within that Chapter. More than that at the relevant time Note 9 to Chapter 21 specifically stated that Heading 21.08 includes protein concentrates and textured protein substances. When "Surje" was a protein concentrate, the same could be classified un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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