TaxTMI 
TaxTMI 
2000 (8) TMI 321
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.... that the appellants themselves had called their product as a ready to serve beverage; the percentage of fruit juice was less than 25% in the product while for being treated as a fruit juice according to the Fruit Products Order, 1955, the fruit juice percentage should have been not less than 25%. He held that the product 'Lipton Tree Top" was correctly classifiable under Heading No. 22.02 of the Central Excise Tariff. He also relied upon the Trade Notice No. 36/90 dated 9-4-1990 of the Bombay Central Excise Collectorate as appearing at 1990 (47) E.L.T. T10. The appeal was rejected. 2. The matter was heard on 5-6-2000 when Shri R. Ravindaran, Advocate and Shri P.K. Mittal, Advocate appeared for the appellants. Shri V.M. Udhoji, JDR represented the respondent/Revenue. Shri R. Ravindaran, Advocate submitted that the product "Lipton Tree Top" was a preparation of fruit, and its classification under sub-heading No. 2001.10 of the Tariff had been earlier approved by the Central Excise Deptt. Its production was started in August, 1987 but prior to 17-4-1989, there was no dispute, and the goods were being classified under sub-heading No. 2001.10 of the Tariff. Earlier, a show c....
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....nbsp; Kerala Cooperative Milk Marketing Federation Ltd. v. Collector of Central Excise, Cochin - 1999 (112) E.L.T. 191 (Tribunal). The Tribunal had observed that the fruit pulp based drink (Refresh) was classifiable under sub-heading No. 2202.90 of the Tariff by virtue of Explanatory Notes. (3) Maharashtra Agro Industrial Development Corporation Ltd. v. Collector of Central Excise, Nagpur - 1998 (103) E.L.T. 142 (Tribunal). The Tribunal had observed that the ready to serve beverages were not normal fruit juices but were manufactured out of fruit juices by addition of water sweetened or flavoured with essences to which citric acid was added and that such ready to serve beverage, the Tribunal held, were classifiable under sub-heading No. 2202.90 of the tarrif. The ld. Departmental Representative also referred to the Board's Clarification as appearing in 1990 (47) E.L.T. (T10) wherein it has been clarified that the products like Frooti, Maaza, etc. were appropriately classifiable as non-alcoholic beverages under Heading No. 22.02 of the Tariff. He also submitted that in the present proceedings, the classificati....
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....r page 61 of the paper book). According to the Analytical Report dated 12-1-1989 of the Central Food Technological Research Institute, Mysore, total soluble solids at 20°C in the sample pack were 13.6% for Apple drink, 15% for Mango drink, 14.5% for Guava drink and 13.6% for Orange drink. Total sugars expressed as sucrose were 11.57% in Apple drink, 13.55% in Mango drink, 12.8% in Guava drink and 11.6% in Orange drink. It was found by the Research Institute that the samples conformed to the specifications laid down in Fruit Products Order 1955, for ready to serve beverages, (refer page 112 of the paper book). 4. It is seen from the process of manufacture as described by the appellants that in the appellants' factory, the starting point for the manufacture of the products in question was the Mango Pulp/Mango Pulp Concentrate; Guava Pulp, apple juice concentrate and Orange juice concentrate. These were received in the factory in cans and other containers from the market. Pulp and pulp concentrate were subjected to grinding, homogenisation, etc. The juice concentrate was subjected to re-constitution. The preparation was obtained was blended with sugar, additives and pre....
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.... (ii) other non-alcoholic beverages, not including fruit or veg. juices of Heading No. 20.01. Natural or artificial mineral waters and aerated waters containing added sugar or other sweetening matter or flavoured were classifiable under sub-heading Nos. 2202.11, 2202.12 2202.13, 2202.14 and 2202.19. Other non-alcoholic beverages not including fruit or veg. juices of Heading No. 20.01, were classifiable under sub-heading No. 2202.90. The expression "other non-alcoholic beverages" was mentioned as natural or artificial mineral waters and - aerated waters not containing added sugar or other sweetening matter, not flavoured, had already been covered by sub-heading Nos. 2201.11, 2201.12 and 2201.19 of the Tariff. This was to ensure that the goods already classifiable under Heading No. 22.01 are not included under the coverage of Heading No. 22.02. The expression "not including fruit or veg. juices of Heading No. 20.01" was also to ensure that fruit juices and veg. juices which were already included in the description under Heading No. 20.01 were not to be classified again under Heading No. 22.02 even when they were covered by the broader description of non-alcoholic beverages. The ex....
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.... 2009.60 Grape juice (including grape must). 2009.70 Apple juice. 2009.80 Juice of any other single fruit or vegetable. 2009.90 Mixtures of juices. As regards juices, unfermented and not containing added spirit, see Note 5 to this Chapter.    The fruit and vegetable juices of this heading are generally obtained by pressing fresh, healthy and ripe fruit or vegetables. This may be done (as in the case of citrus fruits) by means of "mechanical extractors" operating on the same principle as the household lemon-squeezer, or by pressing which may or may not be preceded either by crushing or grinding (for apples in particular) or by treatment with cold or hot water or with steam (e.g., tomatoes, black currants and certain vegetables such as carrots and celery). The liquids thus obtained are then generally submitted to the following processes: (a) Clarification, to separate the juice from most of the solids, by means of clarifying substances (gelatin, albumin, infusorial earth, etc.) or of enzymes, or by centrifuging. (b) &nb....
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....Sugar (2) Other sweetening agents, natural or synthetic, provided that the quantity added does not exceed that necessary for normal sweetening purposes and that the juices otherwise qualify for this heading, in particular as regards the balance of the different constituents [see Item (4) below]. (3) Products added to preserve the juice or to prevent fermentation (e.g., sulphur dioxise, carbon dioxide, enzymes). (4) Standardising agents (e.g., citric acid, tartaric acid) and products added to restore constituents destroyed or damaged during the manufacturing process (e.g., vitamins, colouring matter), or to "fix" the flavour (e.g., sorbitol added to powdered or crystalline cirtus fruit juices). However the heading excludes fruit juices in which one of the constituents (citric acid, essential oil extracted from the fruit, etc.) has been added in such quantity that the balance of the different constituents as found in the natural juice is clearly upset; in such case the product has lost its original character. The....
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....cessary to re-consititute the original natural juice. The Hon'ble Supreme Court in the case of Collector of Central Excise, Shillong v. Wood Craft Products - 1995 (77) E.L.T. 23 (S.C.) = 1995 (57) ECR 417 (SC) had held that any dispute relating to tariff classification is to be resolved with reference to the Nomenclature indicated by the HSN and not in accordance with the definition of a term in ISI Glossary. Para 18 from that decision is extracted below :- "18. We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the H.S.N. unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI Glossary, which has a different purpose, cannot, in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, black boa....
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....acid, ascorbic acid; (c) permitted preservatives and colours. The total soluble solids w/w in the final product shall be not less than 10 per cent and the minimum percentage of fruit juice in the final product shall be not less than 5.0 per cent w/w. On the other hand, the fruit juice is the un-concentrated juice with or without the addition of certain specified ingredients. In para A. 16.01 of the Appendix 'B' to the Prevention of Food Adulteration Act, 1954, the fruit juice has been defined as under :- "A.16 - "Fruit Juice" means the unfermented and unconcentrated liquid expressed from sound ripe fresh fruit, and with or without -- (a) sugar, dextrose, invert-sugar, or liquid glucose, either singly or in combination. (b) water, peel oil, fruit essences and flavour, common salt, ascorbic acid, citric acid [tartaric acid and malic acid] and preservative. The acidity of the finished product calculated as citiric acid shall not be less than 4 per cent in the case of pure lemon juice or pulp and not less than 5....
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.... Excise - 1993 (66) E.L.T. 627 (Tribunal), (2) Amrit Protein Ltd. v. Collector of Central Excise - 1995 (80) E.L.T. 856 (Tribunal), and (3) Collector of Central Excise, Nagpur v. Dinshaw Frozen Foods - 1999 (106) E.L.T. 340 (Tribunal). In the case of Noble Soya House Ltd., the Tribunal had held that the soya milk based beverage manufactured from soya milk with addition of sugar, flavours etc. was classifiable under sub-heading No. 2202.90. In the case of M/s. Amrit Protein Ltd., the Tribunal confirmed the view taken in Noble Soya House Ltd. and held that the soya products sold under different brand names by M/s. Amrit Protein Ltd. with sugar additives, fruit pulp etc. were non-alcoholic beverages classifiable under sub-heading No. 2202.90. In the case of Collector of Central Excise, Nagpur v. Dinshaw Frozen Foods - 1999 (106) E.L.T. 340 (Tribunal), the Tribunal had held that the softy (shake) mix, a preparation of milk containing 87% milk was a ready to serve beverage classifiable under sub-heading No. 2202.90. Para 10 from that decision is extracted below :- "10. We have carefully considered the submissions of the ld. SDR as also the finding of the lower appellate autho....
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....synonymous to meaning given in the Drugs and Cosmetics Act, 1940 regarding manufacture and distribution of drugs and cosmetics. The High Court observed that the definition of Drugs given in the Drugs and Cosmetics Act, 1940 was not relevant for determining its meaning in trade. The definition of fruit juice given in the Prevention of Food Adulteration Act has been given above. We have described the product details as above. We find that the product in question is fully covered by the definition of fruit beverage or fruit drink, as given in para A. 16.05 of Appendix B of the Prevention of Food Adulteration Act, 1954 as is extracted below:- page 182 "A.16.05. - "Fruit beverage" or "Fruit drink" means any beverage or drink which is purported to be prepared from fruit juice and water, or carbonated water, and containing sugar, dextrose, invert sugar or liquid glucose either singly or in combination and with or without- (a) water, peel-oil, fruit essences and flavours; (b) citric acid, ascorbic acid; (c) permitted preservative and colours. The total soluble solids w/w in the final product shall be not less than 10 per cent. The minimum percentage o....
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....delivery of earlier order dated 29-12-1988, deciding the classification of said goods." We have analysed the issue of classification in considerable detail in the above paragraphs. A classification incorrectly decided cannot hold good for all time to come and the interests of justice demand that the goods are correctly classified at the earliest when the occasion so arises. In the present case, we are satisfied that there were cogent and valid reasons to set right the incorrect classification decided by the Asstt. Collector of Central Excise, earlier in his order dated 29-12-1988. The proper procedure for change in classification had been followed and adequate opportunity had been given to the manufacture to present their case and the matter has been examined and re-examination by different authorities at different levels. We, therefore, consider that the parameters as fixed by the Hon'ble Delhi High Court in the case of J.K. Synthetics Ltd. are satisfied in the present case for departing from the earlier view taken by the Asstt. Collector of Central Excise. Reference has also been made to the Supreme Court's decision in the case of Hindustan Ferodo Ltd. v. CCE, Bombay - 1997....