TaxTMI 
TaxTMI 
1991 (9) TMI 165
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....cation 29/86-C.E., dated 10-2-1986. Their claim was not accepted and the 'Milk Masala' was classified under sub-heading 2107.91 as edible preparations, not elsewhere specified or included and put up in unit containers and ordinarily intended for sale. 2. The Assistant Collector relied upon Note 5(b) of Chapter 21 of the Central Excise Tariff which is as under :- "5. Heading No, 21.07, inter alia, includes: (b) preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption." 3. The Assistant Collector held that milk masala is used with milk to give better taste and flavour and, in his opinion it was correctly classifiable under sub-heading ....
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....f Rule 2(b) of the Rules for Interpretation of the Schedule to the Central Excise Tariff Act, 1985. The further claim is that the essential character of the nuts in the milk masala is physically and otherwise identifiable. Further, Assistant Collector's decision regarding classification of the product being based on his personal opinion, the order is bad in law having made without any market enquiry or evidence of persons conversant with the goods. One other plea is that since mixing of various ingredients does not amount to manufacture under Section 2(f) of the Central Excises & Salt Act, 1944, duty of excise is not attracted on milk masala. Reliance has also been placed on Explanatory Notes to Chapter 21 wherein it is specifically explain....
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.... the original commodity in order to derive a new commodity. She submitted that same meaning should be given to the product milk masala which was an edible preparation. 10. Replying to the arguments of the learned SDR, Shri Jain submitted that Pan Masala which is a similar preparation has been included under sub-heading 2106.11 although it is not a product finding place in the original HSN. He contested the arguments that all preparations would necessarily fall under Chapter 21 and submitted that Chapter 8 too covered preparations containing edible fruit and nuts. He also submitted that the Nomenclature was not the final guide in these matters. He requested that the matter be remanded for determining the classification afresh after taking....
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....is lost the moment the product is given the name of milk masala. This is so because that is the name by which it is known and marketed. Thus, the contention that Rule 2(b) should be applied cannot be sustained. 13. We have perused the Assistant Collector's order and observe that he has come to this conclusion on the basis that milk masala is used with milk to give better taste and flavour and has also referred to Note 5(b) to Chapter 21 in his order. It cannot, therefore, be said that it is a non-speaking order as was contended by Shri Jain during the hearing. In view of this, we do not think that it suffers from any infirmity. 14. The plea that mixing of various ingredients does not amount to manufacture under Section 2(f) has to be ....