TaxTMI 
TaxTMI 
2017 (6) TMI 310
X X X X Extracts X X X X
X X X X Extracts X X X X
....d wafers products falling under Chapter 18 and 19 of the Central Excise Tariff Act, 1985. The appellant manufactured during the period in question Milk Treat having ingredients sugar, liquid glucose, milk solids, golden syrup, partially hydrogenated vegetable fats/cocoa butter, emulsifiers (soya lecithin), wheat protein, synthetic food colour and added artificial flavouring substances. The appellants were classifying under Chapter Tariff Heading 19053219 and discharging their duty liability accordingly. The appellants have also filed their ER-1 return regularly. The classification of Milk Treat was disputed by the Revenue and issue 3 show cause notices for the period April 2005 to March, 2009 and December, 2010 to August, 2011 by invoking e....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Chocolate (composed Cocoa Butter) sugar and powder milk falling under Chapter Heading 1704 from its purview and Chapter Heading 1704 covers only sugar confectionary including White Chocolate but not containing Cocoa therefore, collective reading of the Tariff entries along with HSN explained noted notes. It can be seen that White Chocolate not containing Cocoa will merit classification under Chapter Heading 1704 and not under Chapter 1806 which applied to the goods containing Cocoa. Therefore, White Chocolate cannot be treated as Chocolate. Hence, it will not come in the purview under Chapter Heading 19053211. He relies on the decision of this Tribunal in the case of Ravalgaon Sugar Farms Ltd. Vs. CCE, Ahmedabad - 2000 (121) ELT 488 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e order dt. 31.01.2004 passed by the Ld. Commissioner (Appeals) on the issue. Therefore, extended period is not invokable. To support, he relied the decision of Nizam Sugar Factory Vs. CCE, A.P. 2006 (197) ELT 465 (S.C.). Finally, he submitted that the penalty on the appellant is not imposable. 4. On the other hand, Ld. AR opposed the contention of the Ld. Counsel, he relied upon the decision of Nestle India Limited Vs. CCE, Goa - 2008 (227) E.L.T. 631 (Tri. Mumbai) to say that White Chocolate is one of the variety of the Chocolate, therefore, appellant have no case. He also submits that the said order has attained finality vide decision of the Hon'ble Apex Court reported in 2009 (237) ELT A102 (SC) 5. In rebuttal to the arguments adv....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... - Communion wafers: 1905 32 11 - Coated with chocolate or containing chocolate Kg. 16% 1905 32 19 - Other Kg. 16% 1905 32 90 - Other Kg. 16% On plain reading of the said Tariff, we find that the wafers coated with Chocolate or containing Chocolate are classifiable under Tariff Heading 19053211, therefore, we have to find out whether the product in question has been coated with Chocolate or containing Chocolate. 10. The Chocolate has been classified under Chapter Heading 1806. The Chapter Heading 1806 is also reproduced here as under:- 1806 Chocolate and other food preparations containing Cocoa 1806 10 00 - Cocoa powder, containing added sugar or other sweetening matter. Kg. 16% 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hapter 18. The Chapter 1806 deals with Chocolate and other food preparations containing Cocoa. 11. We also take note of fact that the issue, the explainery notes to Chapter 17.04 are also relevant which are reproduced here as under:- 17.04 - Sugar confectionery (including white chocolate), not containing Cocoa. 1704.10 - Chewing gum, whether or not sugar-coated. 1704.90 - Other This heading covers most of the sugar preparations which are marketed in a solid or semi-solid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionery or candies. It includes, inter alia : (1) Gums containing sugar (including sweetened chewing gum and the like) (2) Boiled sweets (Inclu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r is not regarded as Cocoa). 12. As Cocoa butter cannot be said as Cocoa and the supplier of the goods have classified the White Chocolate under Chapter Heading 1704. In that circumstances, from the collective reading of the all the Chapter Heading and their classification list, we find that the Chapter Tariff Heading 19053211 covers the product manufactured under Chapter 1806 having Chocolate or Cocoa but does not include the goods classified under Chapter Heading 1704. 13. Particularly, the Cocoa butter cannot be treated as Cocoa. In the impugned orders, the lower authorities have fell in error by holding that Cocoa butter is Cocoa. 14. As per the notes 6 to Chapter Heading 17.04 Cocoa butter cannot be regarded as Cocoa, therefor....