TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 627
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....repared or preserved otherwise than by vinegar or acetic acid, not frozen, other than the products of Heading No. 2006" and were availing full duty exemption under Notification No. 3/2006-C.E. (Sl. No. 22) of the Table annexed to this Notification which prescribes 'nil' rate of duty for all the goods of Chapter 20 of the Central Excise tariff. The department, however, was of the view that the goods, in question, are correctly classifiable under Tariff Heading No. 2106 90 99 as "other food preparations not elsewhere specified or included". According to the Commissioner, the potato chips being sold in the retail packages are covered by Sl. No. 30 of the Notification No. 3/2006-C.E., which covers "ready to eat packaged food" for which rate of ....
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....rce w.e.f. 1-1-2005, Heading No. 21.06 is the same as Heading 21.08 of the old tariff covering as "food preparations not elsewhere specified or included" and scope of the Chapter 20 of the new tariff w.e.f. 1-1-2005 is the same as the scope of Heading 20.01 of Chapter 20 of the tariff during period prior to 1-1-2005, that, in view of this, the Board's circular dated 6-2-88 clarifying that potato wafers are classifiable under Heading No. 20.01 is still applicable, that the Hon'ble Uttarakhand High Court in the case of Shriya Enterprises v. Commissioner reported in (2012) 51 VST 413 (Uttarakhand), wherein the point of dispute was as to whether potato chips are classifiable under tariff heading covering, "all processed and preserved vegetables....
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....cribes is 8% adv., that the Commissioner ignored the Board's Circular dated 6-12-2006 wherein the Board has clarified that even if the goods covered by Sl. No. 29 of the Notification No. 3/06-C.E. are in the packaged form, the same would still be eligible for exemption under Sl. No. 30 of the notification, that this circular of the Board has been totally ignored by the Commissioner, that the Tribunal in the case of CCE, Indore v. Hello Agro Foods Ltd. reported in 2012 (279) E.L.T. 529 (Tribunal - Delhi) has held that "Rings made out of flour of rice, wheat and potato, fried after adding flavour and packed for retail sale" are correctly classifiable as "other food preparations" under 2108.99 and hence are eligible for exemption as namkeens u....
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....regard to the appellant's plea that even if the goods, in question, are held as classifiable under sub-heading No. 2106 90 99 as "food preparations not elsewhere specified or included", the same would be fully exempted from duty in view of the Sl. No. 29 of the Notification No. 3/06-C.E., as the same are namkeens, he, reiterating the findings of the Commissioner in Para 4.9 of the impugned order pleaded that the goods, in question, being ready to eat packaged food would be covered by Sl. No. 30 of the Notification No. 3/06-C.E. and not by Sl. No. 29 which covers "sweetmeats (known as 'misthans' or 'mithai' or by any other name), namkeens, etc." He accordingly pleaded that there is no infirmity in the impugned order and as such, this is not ....
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.... nuts or other parts of the plants". In our prima facie view, therefore, Board's Circular dated 6-2-88 clarifying that the potato slices fried in edible oil, salted and packed in printed plastic pouches (or other unit containers) are classifiable under Chapter 20 is applicable. Besides this, we also find that the Hon'ble Uttarakhand High Court in the case of Shriya Enteprises v. Commissioner (supra), while deciding a question as to whether potato chips are classifiable under entry, "all processed and preserved vegetables, vegetable mushrooms and fruits including fruit jams, jellies, fruit squash, paste, fruit drinks, fruit juices and achar (wherein sealed containers or otherwise)," has in Para 24 of the judgment held that potatoes chips are....