TaxTMI 
TaxTMI 
2006 (7) TMI 24
X X X X Extracts X X X X
X X X X Extracts X X X X
....ink manufactured by the appellants under sub-Heading No. 2202.90 of the Central Excise Tariff. The above Tribunal's order, thus confirmed that the findings of the lower authority vide order in appeal dated 22-6-94. Paragraph 9 and 10 of the order of Commissioner (Appeals) are of relevance which are given below:- "9. Now coming to the merits i.e. classification of the impugned products "Lipton Tree Top" the question here is whether the said product manufactured by the appellant is correctly classifiable under Chapter Heading 2202.90 as a non-alcoholic beverage or under Heading 20.01 which covers preparation of vegetable fruits, nuts etc. The competing Headings are re- produced below for better appreciation of the issue:- "20.01 Preparations of vegetables, fruits, nuts or other parts of plants, including jams, fruit jellies, marmalades, fruit or nut puree and fruit or nut pastes, fruit juices and vegetable juices, whether or not containing added sugar or other sweetening matter. 2001.10 - Put up in unit containers and ordinarily intended for sale 2001.90 - Other 22.02 Natural or artificial mineral waters and aerated waters, containing added sugar or other sweetening ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m citrate and vitamin C, besides permitted colours and added flavours. The said product has been analyzed by the Central Foods Technological Research Institute, Mysore. In their analytic report dated 12-1-1989, it has been indicated that the fruit drink samples contained total solids in percentage ranging from 13.72 to 15.63. 4. As the matter to be decided pertains to classification, which has been we have gone into the details of entries in Heading 2001.10 as claimed by the appellants and 2202.90 as relied upon by the Department which are reproduced below:- "20.01 Preparations of vegetables, fruit, nuts or other parts of plants, including jams, fruit jellies, marmalades, fruit or nut puree and fruit or nut pastes, fruit juices and vegetable juices, whether or not containing added sugar or other sweetening matter. 2001.10 Put up in unit containers and ordinarily intended for sale 2001.90 Other." "22.02 Natural or artificial mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured; other non-alcoholic beverages not including fruit or vegetable Juices of Heading No. 20.01. - Natural or artificial mineral waters and aerated wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng to him, the product in question would, therefore, fall under sub-Heading 2202.90. Further, he relies upon the same paragraph '6' of Hon'ble the Supreme Court decision in the case of Hamdard (WAKF) Laboratories (supra) to drive home the point that the product in question is classifiable under 2202.90. The last two lines of paragraph 6 of the said judgment hold that, "the fact that a beverage includes fruit or vegetable juice does not ipso facto exclude it from Heading 20.02. Only beverages that contain fruit or vegetable juices that fall under Heading 20.01 are excluded from Heading 22.02." 7. He has also heavily relied upon the first two sentences of the said paragraph which according to him, has to be read together to arrive at the conclusion that the product in question would fall under heading 2002 as the same is not fruit juice but it is a fruit drink. He also relied upon the Circulars issued by the Central Board of Excise & Customs in the year 1990. In the circular dated 19-3-90, it was held that 'frooti or like diluted drinks, containing added water, would be classifiable as beverages under Heading 22.02.' In the subsequent circular dated 16-10-90, it was concluded that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egar and spirits. This Chapter excludes alcoholic liquor for human consumption. 13. The Chapter Heading 22.02, on which the respondents are relying upon refers to natural or artificial mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, on one hand and on the other, nonalcoholic beverages not including fruit or vegetable juices of Heading 20.01. It is the last portion of this Tariff Heading namely, "not including fruit or vegetable juices of Heading No. 20.01", that has been debated upon before us. 14. According to the learned representative of the department fruit or vegetable juices of Heading 20.01, would alone get excluded from the purview of the Chapter Heading 22.02 and not any other beverage irrespective of the fact that they too contained botanicals as mentioned under sub-Heading 20.01. He tried to distinguish the product in question, fruit juice beverage as is commonly understood as fruit or vegetable juices. According to him, the product in question cannot be called as fruit or vegetable juice although they could be fruit preparations. He even pointed out that the appellants themselves called their product not as ....