TaxTMI 
TaxTMI 
2018 (7) TMI 685
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....arising out of Order-in-Appeal No.12/2009 (H-IV) CE dated 20.03.2009. (ii) Appeal No. E/1645/2010 arising out of Order-in-Appeal No.49/2010 (H-IV) CE dated 28.04.2010 (iii) Appeal No. E/1770/2011 arising out of Order-in-Appeal No.45/2011 (H-IV) CE dated 27.04.2011 2. Heard both sides and perused records. 3. The brief facts of the case after filtering out unnecessary details are that appellant herein are manufacturers of wafers with a cream layer made out of cocoa powder, sugar, flavour, emulsifiers and hydrogenated vegetable fats and they sell the same as choco-dipped wafer layers and wafer covered with delicious chocolate layer. According to the appellant these goods are classifiable under Central Excise tariff head....
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....getable fats, emulsifiers, etc., in addition to cocoa powder, sugar and flavour. Therefore the layer contained in the wafers is not of chocolate but of cocoa. In fact, they cannot market it as wafer containing chocolate in view of the specific prohibition under the Prevention of Food Adulteration Act. Since they cannot market the wafers as the ones containing chocolate their wafers should not be classified so but should be classified as other wafers and should be charged to the central excise duty accordingly. 5. Show Cause Notices were issued and demands were confirmed for the differential duty along with interest under Section 11AB. Penalty was also imposed on the appellant for not discharging the appropriate duty. Aggrieved, the appel....
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....ative (DR) on the other hand vehemently supported the arguments made in the Order-in-Original and Order-in-Appeal and said that classification of the goods must be based on the Central Excise tariff with some reliance being placed on the explanatory notes of the HSN. They cannot be classified based on the definitions given in other laws as the objectives of the different statutes are different and so are the statutory definitions therein. Considering arguments put forth by both sides and after perusal of records, we find in the case of Brittania Industries - 2015 (322) ELT 182 (SC), the Hon'ble Supreme Court was remanding the matter back to the Tribunal, observed in Para No.4 as follows: "4. We find from the impugned order [2005(18....
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....ssification that the definition of one statute having a different object, purpose and scheme cannot be applied mechanically to another statute. As aforesaid, the object of the Excise Act is to raise revenue for which various goods are differently classified in the Act. The conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute for non-levy of excise duty, thereby causing a loss of revenue. The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding of "ice-cream" and thus, may require different standards for a good to be marketed as "ice-cream". These provisions are for ensur....
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.... 1806.10 - Cocoa powder, containing added sugar or other sweetening matter 1806.20 - Other preparations in blocks or slabs weighing more than 2 Kg or in liquid, paste, powder, granular or other bulk form in containers or immediate packings, of a content exceeding 2 kg. - Other, in blocks, slabs or bars 1806.31 - Filled 1806.32 - Not filled 1806.90 - Other Chocolate is composed essentially of cocoa paste and sugar or other sweetening matter, usually with the addition of flavouring and cocoa butter; in some cases, cocoa powder and vegetable oil may be substituted for cocoa paste. Milk, coffee, hazelnuts, almonds, orange-peel, etc., are sometimes also added." 13. As may be seen fr....
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....ated in the batter of the wafer or into any particular layer. Thus we find no force in the argument that for the wafer to contain chocolate it has to be integrated into any specific layer of the wafer. 16. In view of the above, we find that the products manufactured by the appellant are classifiable under 1905-32-11. Accordingly, we find that the appeal is liable to be dismissed and we do so. 17. The appeals are dismissed and Orders-in-Appeal are upheld. ( Pronounced in the Open Court on 05.07.2018 ) ============= Document 1 Stage-1 11 Dukes consumer care limited. Unit-II Dry powder mixing Dry + wet mixing COCOA PASTE PROCESS Sugar Skimmed milk powder Cocoa powder Salt Flavour Hydrognate ....