TaxTMI 
TaxTMI 
1989 (6) TMI 180
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....h Institute for their opinion on 20th May, 1989 and the Institute furnished the reply on 25th May, 1989, while the order against the appellants was passed by the Assistant Collector much earlier on 26th July, 1988 and the order of the Collector (Appeals), upholding the order of the Assistant Collector was passed on 28th October, 1988. The documents were not before the lower authorities. In accordance with the accepted practice of this Tribunal, the collecting of supporting evidence in this manner in order to fill in the gaps in the appellants' case is not admissible. For these reasons the request for taking on record the two letters is, therefore, rejected. We are, however, taking on record the bare technical literature on the manufacture of malt and malt products and the publication "Flavour '81" which relates to the Symposium Proceedings of the International Conference, Munich. 3. Having taken up the appeal thereafter, we have heard both sides at length. i) Skimmed milk (milk solids other than milk fat) - 53.5% (ii) Milk Fat -17.0% (iii) Sugar -10.0% (iv) Cocoa -7.0% (v) Malt -10.0% (vi) Vitamins, Minerals and Moisture - 2.5% 4. It is sta....
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....dled milk, cream, yogurt, whey, curd, and products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter or flavoured or containing added fruit or cocoa. Heading No. Sub-heading No. Description of goods Rate of duty (1) (2) (3) (4) 04.01 Milk and Cream, concentrated or containing added sugar or other sweetening matter - In or in relation to the manufacture of which any process is ordinarily carried on with the aid of power : 0401.11 -Flavoured milk, whether sweetened or not, put up in unit containers and ordinarily intended for sale Nil 0401.12 - Skimmed milk powder, specially prepared for feeding in fants Nil 0401.13 - Skimmed milk powder, other than powder specially 15% prepared for feeding infants, put up in unit containers and ordinarily intended for sale 15% 0401.14 - Concentrated (condensed) milk, whether sweetened or not, put up in unit containers and ordinarily intended for sale 15% 0401.19 -- Other Nil 0401.90 -- Other Nil 04.0....
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.... unit containers and ordinarily intended for sale 15% 1903.90 -Other Nil 19.04 Prepared foods obtained by the swelling or roasting or cereals or cereal products (for example, corn flakes); cereals, other than maize (corn), in grain form, precooked or otherwise prepared 1904.10 - Put up in unit containers and ordinarily inten ded for sale 15% 1904.90 - Other Nil 19.05 Bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa, communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products - Biscuits; waffles and wafers : 1905.11 -In or in relation to the manufacture of which any process is ordinarily carried on with the aid of power 10% 1905.19 -Other Nil - Cakes and pastry : 1905.21 -In or in relation to the manufacture of which any process is ordinarily carried on with the aid of power Nil 1905.29 - Other Nil 1905.90 - Other Nil ....
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....ling under Heading 19.01. The Department's case is that the impugned product is a food preparation based on dairy product falling under Heading 19.01. 12. Is it so? The Department's case is that the impugned product is specifically covered under 19.01 as a food preparation 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. The Appellants have filed a write-up by M. Narayana Rao, M.R. Chandrasekhara, M. Swaminathan and V. Subrahmanyan on "Manufacture of Malt and Malt Products", in which they have drawn our attention that there are several uses of malt in the preparation of food and beverage products and these depend chiefly on the enzyme activity, starch content and flavour. The main object in the preparation of malt extract from the malt is to obtain an easily digestible extract rich in maltose and dextrins and having a pleasant taste and flavour. Malt extract can be easily incorporated with milk and dried to have malted milk powder. In the other literature titled 'Flavour '81', our attention to the Introductory part of which is drawn, it is stated that as a source of flavours....
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....ed that since the impugned product predominantly contains skimmed milk powder, with other constituents as sweetening and other flavouring agents, it cannot be treated as a food preparation of milk and cream. We find, however, that this decision of the Hon'ble Supreme Court was taken in the context of the then Tariff in which, the question of common parlance came up because there was no definition available in the Central Excise Tariff. The position is changed in the new Tariff. Admittedly as per Note in Chapter 4, 'milk' includes skimmed milk. It is true that there is no definition of 'milk' in Chapter 19 but the various provisions of the Tariff have to be construed in a harmonised manner and the fact that the definition 'milk' is contained in Chapter 4 cannot be ignored. 17. We have seen the decision of the Tribunal in the case of Collector of Central Excise, Pune v. Frozen Foods (P) Ltd. [1987 (27) E.L.T. 195], which has been cited before us. We find that the decision in that case was taken essentially on the basis of the opinion of experts and various affidavits filed on behalf of the assessee. These were not controverted by similar material from the Department's side. It was....