TaxTMI 
TaxTMI 
2006 (9) TMI 56
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....ssification under the Central Excise Schedule, it is first necessary to decide what are the entities are marketable new commodity understood commercially by the persons who deal in them to have emerged i.e. the manufacture/production and their levy under the Central Excise Act is attracted, then it is required to find a suitable heading/sub-heading, and application of the Statutory Rules for classification including relevant Section Note, Chapter Notes and Heading Notes under HSN considered and if found necessary the non statutory provisions and legislations thereafter applied, if called for. One cannot first find a heading and then apply the same. 1.3For the purpose of arriving at the classification of the entities herein, the nature of the products, the rival claims of Revenue and the assessee are by broadly splitting the list item different groups as : (a) Hirise 5, Hirise 6 (Repacked Full Fat Soya Flour) (b) Cake Improvers Saf Gel, Quick Rise Gel, Lite N Soft Gel, Helios Special Baker (Green), Fresh N Soft, Pakka Gel Helios Special Baker, manufactured by Helios Foo....
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....nce to show the Appellant's repacked soya flour has been textured. It is Appellant's contention that the burden of proving classification is upon the department. Appellant also submits that merely because the product label states that the Soya flour is minerally fortified and that the product can be used as a bakery improver, this cannot be determinative of the classification of the product. In any case, Chapter 21 applies to miscellaneous edible preparations and Heading 2108 applies to different edible preparations not elsewhere specified or included, i.e. it is a residuary of residuary. (iv) Relying on the submission, which cannot be contradicted, on facts, that no process has been carried out on the Full Fat Soya flour purchased in bulk and repacked by them and absence of data/test report, as to how the entity is fortified by minerals and what is the percentage and content increase or change in minerals over the naturally occurring minerals in the Soya flour procured and repacked. The fact of desired mineral fortification cannot be established. The label is only relied by Revenue in this respect, in absence of data, the label would have to be considered as Adverti....
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.... would include cake improvers produced by Helios Food Additives and sold under various brand names and Helios liquid emulsifier manufactured by Helios Food Improvers. (ii)The composition of these cake improvers is Hydrogenated Vegetable Fat (vanaspati), Vegetable fat based emulsifier, water, processing aids such as propylene glycol, glycerin and potassium hydroxide. 'Helios liquid emulsifier' consists of vegetable oils, glycerin and potassium hydroxide (different brand names under which these products were being marketed not reproduced. These products, are similar to what is stated in Heading Note 15.17 of HSN in that, the products contain hydrogenerated vegetable oil worked, by emulsification, using a Veg. Fat based emulsifier and small quantities of propylene glycol, glycerin and potassium hydroxide which are used to derive texturation in the form of crystalline structure gel. In order to get an emulsion of water-in-oil type, water is used. 'Margarine' another such entity would also contains colouring matter, vitamins, water and lecithin which a binding agent. The ld Jt. C.D.R states that Margarine is a pure oil. This is n....
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....urse of arguments, it was accepted by both sides, on a question from the Bench, that the products in question were nothing but 'Bakery Shortenings.' If that be so, then Chapter 1517, amply covers shortenings. Merely because the Appellants call their products as 'Cake Improvers', cannot be a reason to classify the products under Heading 2108.88 or 2106.90 HSN. Department's reasoning that the second part of CSH 1508 corresponds to Chapter 1518 of HSN is incorrect. There are only two sub-headings. Heading 1508.10 deals with linoxyn and 1508.90 deals with others. It is, therefore, clear that all products, which would be covered under 1518, whether edible or not, fall under Chapter 1508.90 except linoxyn which would only fall under Chapter 1508.10. (v)Considering the stipulation in HSN Notes under Heading 2106 to be specifically covering. Preparations based on butter or other fats or oils derived from milk are used e.g., in Baker's wares to be applicable in this case, we find no substance in the ld. Commissioner's finding and applicability of this Note, as the products manufactured by the assessee, in this case, are based on vege....
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....or 1517.90 HSN) Therefore, Cake N Soft is correctly classifiable under CSH 1504.00 akin to 1516.20 of HSN. For reasons arrived supra for cake improvers, this product cannot be classified under Chapter 2108 of CETA, 1985 akin to 2106 of HSN as it did not specify in the Explanatory Note A & B of 2106. Also relying upon Banner Pharmacaps decision which referred in Cake Improvers. (d) (i)The fourth category of products are Bread Improver and Cake Lite, which the Appellant had classified under Heading 1905.90. Alternative classification under Heading 1101.00 of CET akin to 1102.90 of HSN is being pressed. Department seeks classification under Heading 2108.99 akin to 2106.90 of HSN. (ii)These products manufactured by the appellant are basically 'flours' that are improved by addition of very small quantities of emulsifier, Vitamin C, yeast, food and enzyme. Appellant's product Cake Lite consists of 95% rice flour bought in bulk and repacked along with 5% maize starch also bought in bulk and added to the rice flour. Appellant has met the starch and ash requirements. There is no evidence produced by the departmen....
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....ies of certain items as mentioned above. When the products in question are covered by specific heading, i.e. Chapter 11 being products of milling industry, the same cannot be consigned to the residuary chapter, i.e. Chapter 21 and that too, to a residuary sub-heading of Chapter 21 which covers products not elsewhere specified in the entire tariff. That it is settled law laid down by the Supreme Court, in the case of Dunlop Industries, that specific heading has to be preferred over a general heading. That if the department's logic is accepted then any item which is used in the bakery for any purpose would have to be classified under Heading 2108.99, for e.g. Garlic used for making garlic bread, multi-grains used for making multi-grain bread, sesame seeds/pumpkin seeds used in bread, sugar used for sweetening bread, salt which makes the bread palatable. This result clearly cannot be accepted. (vi)The basis for classification is to prefer, when there are specific headings covering the product, in question, the specific over residuary heading. It is only in a case where there is no specific heading which covers a product, then i....
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.... rate through a woven metal wire sieve of 500 micron. The department seeks classification under Chapter 1901.19 on the basis that the appellant mixes maize starch with cereal flours. There is no convincing material to establish the same. The appellant denies adding anything to the maize starch purchased in bulk and repacked after sieving and sifting. Appellant has time and again asked the department for evidence as to what are the ingredients that the department alleges that appellant is adding to its repacked maize starch. This can be seen on page 193 of appeal petition which contains written submissions filed before the Commissioner. The department till date has not supplied with any evidence nor has it specified what are the ingredients that the appellant is alleged to be adding to its repacked maize starch. The classification of corn flour has already been settled in appellant's favour as held in case of CCE, Mumbai-III v. Corn Products Company (India) reported in 1999 (108) E.L.T. 673. This case was maintained in Supreme Court as Commissioner v. Corn Products Co. (India) Ltd. reported in 2000 (121) E.L.T. 223. Also the case of Weikfield Products Co. Pvt. Ltd. v. CCE, Pune repo....