TaxTMI 
TaxTMI 
2019 (3) TMI 789
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....l Excise Tariff Act and they were claiming exemption from payment of duty under Sr. No. 29 of the Notification No. 3/2006 dated 01.03.2006 as amended claiming the same as Chikki sweet meat cereal bars under the category of Mithai/ Misthans. The ingredients of the product were mainly rice crispies, soya crispies, white oats, corn-syrup, edible veg. oil, raisins, edible starch, almonds etc. Some of the sweet meat cereal bars were also coated with cocoa. The Appellant were issued show cause notice dated 09.10.2015 wherein it was alleged the chikki is primarily made of jiggery and sugar whereas the Appellant is using different ingredients. The usage of such ingredients make the manufactured goods distinct from group of items mentioned against Sl. No. 29 of Notification No. 03/2006 - CE dated 01.03.2006, which are general household preparations and easily identifiable and available in the market in ready for consumption form. The preparation of Misthans, Mithai, Namkeens, Bhujia, Mixture and similar items are also known in all parts of the country and are easily available. The Appellant has mentioned the product as "Chikki" type cereal sweet meat bars. "Chikki" in common parlance is a s....
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.... jaljeera; that subsequent Notification No. 12/2012-CE dated 17.03.2012 also exempted the goods; that in terms of Chapter Note 6 to Chapter Note 21 sweet meat commonly known as Mithai/ Misthan irrespective of their ingredients would be classifiable under Ch. 21 only. It is submitted that in many of the sweets i.e. mithai, some proportion of cocoa is used and only for that reason, the products cannot be classified as products of cocoa; Chapter 18 specifically deals with cocoa and other food preparations containing cocoa. Central excise tariff 1806 starts with words "Chocolate" and therefore, the words following 'chocolate' i.e. other food preparations containing cocoa would mean when cocoa and its preparations are the main ingredients and they induce the buyers to buy the product as Chocolate or as similar product. The adjudicating authority has held that when there is no use of cocoa in sweet meat cereal bars, they would fall under CH 21069099 which itself shows that by generic meaning the goods in question are mithai /misthans or similar products. He draws our attention to the affidavits of various dealers submitted before the adjudicating authority that the goods are known and so....
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....o. 29 holding that it is "Ready to eat packaged food". He relies upon the Tribunal judgment in case of Hindustan Lever Ltd 2005 (189) ELT 53 (Tri) to state that the term "Sweet Meat" covers all sorts of edible preparations and the edible preparations containing sugar in ready to consume form would be covered under the term "Sweet Meat". That the term "similar edible preparations" cannot be restricted to Mithai as the term does not mean same or identical. It includes all sorts of preparations based on sugar which are ready for consumption. He relies upon the Tribunal judgment in case of Globe Confectionery 2005 (190) ELT 239, wherein it was held that the product would remain classified under 2108 irrespective of the nature of the ingredients and the scheme of the classification is to place all "Misthans" or "Mithais" under 2108. He submits that the Tribunal's judgment was confirmed by the Hon'ble Apex court, as reported in 2006 (197) ELT A191 (SC) submits that mere packing of 'Misthan' or 'Mithai' would not remove the same from heading 21069099 to make it 'ready to eat packed food'. He relied upon Chapter Note 6 of Ch. 21 of the Central Excise Tariff, which reads that "Tariff item 2....
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....i) Pepsico India Holding Pvt Ltd Vs CCE, 2016 (331) ELT 119 (Tri) 5. He alternatively submits that the adjudicating authority in respect of Sweet meat without cocoa has given the benefit of concessional duty of NIL, 1% and 2% in terms of Notfn. No. 1/2011 dated 1.3.2011. Therefore, in any view of the matter even the Sweetmeat cereal bars with cocoa, following the same ratio the above notification benefit has to be applied going by the department's own stand. He submits that in case of SCN dated 9.10.2015 the demands are barred by limitation as they had submitted the process of manufacture and ingredients vide their letter dated 25.7.2006. He draws our attention to the correspondence between the Appellant and the Department vide letters dated 25.7.2006, 2.8.2006, 5.4.2007, 12.4.2007, 4.9.2007, 29.2.2008, 19.4.2011, 4.5.2011, 15.2.2013, 4.3.2013, 28.11.2014, 10,9,2015, 5.12.2014, 01.06.2015, 03.08.2015, 06.10.2015 which clearly shows that the department was in knowledge of the manufacturing process, ingredients and nature of product since year 2006 - 07. He submits that in view of such communication, the demands are squarely time barred. He relies upon the following judgments: i) C....
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....9099. These goods are sold by them as "Chikki - Nutrition Bar Sweet Meat.", one of the products also contain Aswagandha, Shankhpushpi and other ingredients to make the product healthy. The Revenue in case of product not containing cocoa, has classified the product under tariff item No. 21069099, but held that the products are "ready to eat packaged food" for the reason that the same were sold in packaged condition. In case of some products coated with cocoa, the adjudicating authority has classified the products under tariff item No. 1806 on the ground that in terms of Ch.Note - 2 to Ch. 18, the heading 1806 includes sugar confectionery containing cocoa and subject to Note-1 to this chapter 'other food preparations containing cocoa'. We find that the Appellant is marketing and selling the product as Sweet Meat. The photographs of the wrappers of all the products annexed to the Appeal Memo show that the product has been marketed and sold as Sweet Meat in market. The invoices issued by M/s Naturell for sale of the products in dispute specifically mention the product description as Sweet Meat. Even similar products of the competitors which are sold in market are known in trade circle ....
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....the Department has not come out with any evidence to show that the goods are not 'mithai' or 'Misthans'. Mere packing of the sweet meat same would not remove the product from the heading of 'mithais / misthans' to make it "ready to eat packaged food". Sl. No. 29 of the Notification No. 3/2006 is a wide entry, which encompasses not only Sweet Meat known as 'mithais / misthans ( or by any other name), namkeen, Bhujia, Mixture, Chabena , but also similar edible preparations in ready for consumption form, papad, jalgira. The word similar edible preparation is of wide compass. If the goods are known as Sweet Meat and are marked and consumed as sweet meat in general parlance, then even-if packed would not lose its identity as 'misthans'. With the advancement of technology, the Sweet Meat such as Rasgulla, Peda, Sohanpappdi and various other Sweet Meat are being sold in market after packing. The intention of packing these 'mithais / misthans' is to preserve their freshness and save them from any contamination. But, this does not mean that only if the Sweet Meats are sold openly in sweet shops would classify as Sweet Meat and if sold in packaged form would change their nature to 'ready to ....
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....icate the extension of the exemption to the products emerging in the factory of the appellants herein. (e) The notification benefit is available and the demands cannot be upheld. There is no case or cause for penalty, the same is to be set aside. 3.1 In view of the findings, the order is set aside & appeal allowed by ordering the grant of eligibility under Sl. No. 8 notification 6/2000 to the said goods and confirming the classification under 2108.99" 8. Similarly, in case of Globe Confectionery 2005 (190) ELT 239 (Tri), while dealing with the classification of product namely Rasgulla, Peda, the Tribunal held that irrespective of the ingredients, the scheme of classification is to place all "misthans" or 'mithais" under 2108. That despite sugar being a predominant ingredient, the items cannot go under sugar confectionery. The above judgment of the Tribunal was affirmed by the Hon'ble Supreme Court, as reported in 2006 (197) ELT A191 (SC). We thus are of the view that the products not containing cocoa are eligible for exemption as "sweet meat". Coming to the classification of the products containing cocoa, we find that Chapter Note 6 to Chapter 21 clarifies that Sweet Meats, c....
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....ad come to the conclusion that the product did not fall under Entry 2302 because the product had to be added in a small quantity to the main feed to get desired performance of the live stocks or to enhance the performance of the live stocks beyond the normal levels. He further observed that he would have accepted the plea of the assessees that the products were animal feed had the product manufactured by them been directly used as such for animals feeding. The claim of the respondents herein was rejected because according to the Collector the products merely were to enhance the performance of live stocks by addition of these supplements to the animal feeds. From this it is evident that the Collector regarded the products in question as animal feed supplements. 5. On further appeal to the Tribunal it came to the conclusion that animal feed supplements were rightly included in Tariff Item 2302 being preparation of a kind used in animal feeding including dogs and cats food. We agree with the conclusion of the Tribunal that even food supplements like the products of the respondents which are used in animals feeding would fall under the Heading 2302 and, therefore, we do not find any ....