TaxTMI 
TaxTMI 
2013 (1) TMI 251
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....Prasad', boiled sugar is rotated in a vessel till it dries up and for 'Mishri', boiled sugar is put into moulds along with thread for six days till it solidifies and becomes Mishri. The period of dispute is 2000-2001 when the respondent was availing SSI exemption. According to Department, Prasad and Mishri are sugar confectionery classifiable under sub-heading 1704.90, while according to the respondent, Prasad and Mishri being classifiable under sub-heading 2108.30 are chargeable to nil rate of duty and, hence, their clearances are not to be included in the value of clearances of value upto rupees one crore for the purpose of SSI exemption. According to Department, the Mishri and Prasad being sugar confectionery covered by 1704.90 are....
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.... Counsel for the respondent, defending the impugned order pleaded that - (a) Hon'ble Supreme Court, in case of State of Gujarat v. Sakarwala Brothers reported in 1996 INDLAW SC 43 has, taking into account the definition of sugar, as "any form of sugar containing more than 90% of sucrose" in item No. 8 of the Schedule to Central Excise Act, 1944, has held that Patasha, Bura Sugar, Harda and Alchidana are 'sugar' covered by entry No. 47 of Schedule A to the Bombay Sales Tax Act and hence not chargeable to Sales Tax; (b) Hon'ble Rajasthan High Court in its judgment dated 2-7-1992 in case of Commercial Tax Officer, Bikaner v. M/s. Heera Lal Murlidhar has held that "sugar candy" with more than 90% sucrose is a variety of sugar an....
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....ding 1704.90 as sugar confectionery, classification under this sub-heading is ruled out even in terms of the Board's Circular No. 879/17/2008-CX.-I, dated 5-12-2008. He also pleaded that the process of making 'Mishri' and 'Prasad' from sugar is not specified in any chapter notes as amounting to manufacture and hence in view of Apex Court's judgment in case of Shyam Oil Cake Ltd. v. CCE, Jaipur reported in 2004 (174) E.L.T. 145 (S.C.), the process would not amount to manufacture. He, therefore, pleaded that there is no merit in the Revenue's appeal. 5. We have carefully considered the submissions from both the sides and perused the records. 6. The undisputed fact is that 'Prasad' and 'Mishri' are made from sugar. In the Reven....
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.... of Chapter 17 and the decision of the Apex Court in case of Sakarwala Brothers (supra), is per incurium, has ruled out the classification of Mishri, Batasha, Rewadi, Chironjidana/Alachidana, Harda under Tariff Heading 1704.90. According to this circular, however, making of Bura, Mishri, Hardas, Batasha from sugar would amount to manufacture under Section 2(f) and these products are classifiable under sub-heading 1701 91 00 pertaining to - "Refined sugar containing added flavouring or colouring matter". 7.1 However, during the period of dispute, there was neither any sub-heading covering - "refined sugar containing added flavouring or colouring matter", nor it is anybody's case that the products, in question, - "Prasad" and "Mishri"....
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....ommodity does not change. They continue to be bottles. It cannot be said that but for the process of printing, the bottles will serve no purposes or are of no commercial use." Thus, the new commercial commodity emerging by a process of "manufacture" must also have character and hence usages different from the original material from which the new commodity has been made. In this case, the character and usage of the goods - 'Prasad' and 'Mishri" remain the same as sugar from which the same have been made, as both the products have more than 90% sucrose and both the products are used for sweetening the foods and beverages, which is the same as the use of sugar from which the same are made. It is not the Department's case that they are colou....