TaxTMI 
TaxTMI 
1989 (6) TMI 180
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....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 stated that the process of manufacture is that fresh ....
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....ilk 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 04.02 Butter, whether pasteurised or not 0402.10 - In or in relation to the manufacture of which any process is ordinarily carried on with the aid of power 10% 0402.90 -Other Nil 04.03 Cheese, pasteurised or processed 0403.10 -In or in....
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.... 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 7. So we have to now take a view whether the impugned product would fall under Heading No. 04.01 as "Milk and Cream, Concentrated or containing added sugar or other sweetening matter" or under 04.04 as "other dairy produce; edible products of animal origin, not elsewhere specified or included" or, as the Department contends under 19.01 which includes infer alia "food preparations of milk and cream, not containing cocoa powder in a proportion by weight of less than 10%, not elsewhere specified or included". 8. Having fully considered all the facts that have been placed before us, there is hardly any doubt that classification under Heading Number 04.01, as originally claimed by the appellants, has to be ruled out as the product is not Milk or Cream, concentrated or containing added sugar or other sweetening matte....
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....ract 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 flavoursome compounds, malt is undoubtedly the raw material whose specification is most readily controlled. It is stated that as a source of a flavouring compound, malt is undoubtedly the brewing raw material, with a characteristic aroma which develops, during the curing operation, as a result of several enzymic and chemical reactions. 13. This literature is obviously filed with reference to a query from the Bench, made at the time of the last hearing, as regards what authority there was in support of the appellants' submissions that malt was a flavouring agent. However, the technical literature which has been cited here, does not further in any way the case of the appellants. On the other hand, the learned Departmental Representative has produced a write up on 'Nutritive Value of Indian Foods' by C. Gopalan, B.V. Rama Sastri and S....