TaxTMI 
TaxTMI 
2023 (11) TMI 601
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....279 A (4), 14, 19(1) (g) and Article 265 of the Constitution of India and to quash the same and to direct the 2nd respondent to classify "flavoured milk" under HS Code 0402 in terms of decision of the Hon'ble Supreme Court ancillary and collect Goods And Service Tax. 3. In W.P.No.16613 of 2020, the petitioner has prayed for a Writ of Mandamus directing the 2nd respondent to classify the goods under Chapter 0402 in accordance with the binding precedent in Commissioner Vs. Amrit Food reported in 2015 (324) ELT 418 (SC) and levy GST accordingly. 4. Relevant portion of the impugned decision of the 3rd respondent GST Council in its Minutes of Meeting dated 22nd December, 2018 classifying "flavoured milk" under HS Code No. 2202 reads as under:- Sl. No. Description HSN Present GST Rate (%) Requested GST Rate (%) Comments 18. Flavoured Milk 2202 12% Clarification that it is classifiable under Chapter 4 1.The Explanatory Notes to HSN describe the goods classifiable under the heading 0402 as under: This heading covers milk (as defined in Note 1 to this Chapter) and Cream, whether or not pasteurised, sterilised or otherwise preserved, homogen....
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....d Cream, whether or not pasteurised, sterilised or otherwise preserved, homogenised or peptonised; but it excludes milk and cream which have been concentrated or which contain added sugar or other sweetening matter (hearing 04.02) and curdled, fermented or acidified milk and cream (heading 04.03). The products of this heading may be frozen and may contain the additives referred to in the General Explanatory Note to this Chapter. The heading also covers reconstituted milk and cream having the same qualitative and quantitative composition as the natural products. 2. Flavoured milk is classifiable under HS code 2202. 3. Fitment Committee does not recommend issuance of such clarification. The above also supports the classification of the 'flavoured Milk' under CTH 22029930 6.8 The applicant has relied on the FSSAI regulations and has claimed that the product is a milk and to be classified under CTH 04. We find the classification as available in the Customs Tariff is aligned with the International convention based on Harmonised system of Nomenclature. The product is specifically covered under a specified heading. When this being the fact, there appears to....
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.... in hand are products of Standardized/Toned Milk which are UTH sterilized and added with flavours, sugar, water, stabilizers, regulators, etc. These are not full cream milk or partially or completely skimmed milk and therefore not covered as 'Milk' under CTH 0402. Further, the products do not lack any natural constituents and further no natural milk constituents are added to it and therefore, are not covered under CTH 0404 also. Thus we find no infirmity in the findings of the lower authority that the product in hand do not fall under Chapter 4 of the Customs Tariff, though the product is categorized under Dairy products and analogues under FSSAI Regulations, 2011. 9.1 The product in hand is a 'ready to drink' product. The appellant has contended that their product though is ready to drink, it is Milk, being a dairy produce in which additions as admissible under the GMP as allowed under the FSSAI Regulations are only added and has further contended that to be a 'Beverage', the product should have 'water' as the dominating ingredient. In this connection, we find that the National Dairy Development Board as seen in the page https://www.nddb.coop/services/ppd/dairyproducts/b ....
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....s bottles or UHT processed and aseptically packed. NDDB being a nodal agency in the Dairy products and the 'Flavoured Milk' is categorized as Beverage as can be seen above. The process mentioned under 'Flavoured Milk', above is the one followed by the appellant in the case at hand. Further, Beverage as per the dictionary definition is 'any type of drink except water'. Thus, it becomes evident that the product in hand is a Beverage. 9.2 Chapter 22 of Customs Tariff covers 'Beverages, Spirit and Vinegar'. Tariff Heading 2202 covers - Waters, including Mineral Waters and Aerated Waters, containing added sugar or other sweetening Matters or Flavoured, and Other Non-alcoholic Beverages, Not including Fruit or Vegetable Juices of Heading 2009. Thus, this heading covers waters under CTH 2202 10 and other Non-alcoholic Beverages other than Non-alcoholic Beer under CTH 2202 99. The relevant tariff items are given below : 2202 99 - Other : 2202 99 10 --- Soya milk drinks, whether or not sweetened or flavoured 2202 99 20 --- Fruit pulp or fruit juice based drink 2202 99 30 --- Beverages containing milk 2202 99 90 --- Other ....
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....e classification is squarely dealt with by the application of GRI Rule 1 and therefore there is no need to examine the applicability of Rule 3(a) or 3(b) as claimed by the appellant. 11. The appellant has relied on certain decisions which are not applicable to the case at hand for the reasons stated below : (1) Addition of small quantity of flavour does not take milk/milk products outside purview of Chapter 4 - In the case at hand, the product is outside the purview of CTH 0402 not because of the addition of the flavour but of the fact that as per Chapter Note 1 to Chapter 4, the 'Milk' is not full cream Milk or Skimmed Milk and therefore not applicable. (a) The decision in the case of Cavinkare Private Limited v. Commissioner of Central Excise do not have a precedent value as per Section 35R of the Central Excise Act, 1944 and (b) In the case of Nestle India Ltd. v. CCE, New Delhi, the classification dispute was between 0404 and 1901. " 'NESCLAC Nutritious Milk Drink' being a baby milk powder based drink which is not comparable with the product" (2) The product in question is essentially milk and deserves to be classified under Chapter ....
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....In terms of the above decision, flavoured milk is liable to tax at 6% in terms of Sl. No.50 to Second Schedule to Notification No. 1/2017-Central Tax (Rate) dated 28.6.2017. On the other hand, if flavoured milk is to be classified under Heading 0402 of the HS Code 0402 as has been claimed by the petitioner, it would be liable to tax at 2.5% in terms of Sl.No.8 to the first schedule to Notification No. 1/2017- Central Tax (Rate) dated 28.6.2017. 10. It is the submission of the petitioner that GST Council can only recommend the rate but cannot determine the classification of goods or services. It is submitted that "flavoured milk" was naturally classifiable under Heading 0402. 11. Arguing on behalf of the petitioner, the learned Senior Counsel submitted that the issue was settled long before in the context of Central Excise Act, 1944 and Central Excise Tariff Act, 1975 by a series of decision rendered by the Tribunal and Hon'ble Supreme Courts. In this connection, decisions of the Courts and Tribunal's in the following cases were invited:- (i)Vadilal Chemicals Ltd., Vs. State of AP and others, [(2005) 6 SCC 292]; (ii)Ramavatar Budhaiprasad, ETC Vs. Assistant S....
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....s a "Dairy Product", it has to be naturally classified only under Heading 0402 of the Customs Tariff Act, 1975. 13. The learned Senior Counsel for the petitioner further submitted that at the petitioner's manufacturing unit at Sitarganj, Udham Singh Nagar District in Uttarakhand, the petitioner had intended to manufacture "flavoured milk" and applied for modification of license vide letter dated 19.02.2021. The said application was reverted by the Authority under FSS Act, 2006 vide communication dated 20.04.2021 directing the petitioner to modify the product description of "flavoured milk" under dairy product. 14. It is submitted that the petitioner responded to the same and the license had amended with addition of manufacturing of "flavoured milk" under the category of dairy products. 15. Therefore, it is submitted the above facts clearly establish that the Government of India has considered "flavoured milk products" as dairy products in its policies. 16. The learned counsel for the respondent submits that there is no merits in the present writ petition. He submits that the present writ petition is devoid of merits and is liable to be dismissed. It is submitted that th....
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....bmitted that Writ of Mandamus is limited to the enforcement of the obligation imposed by law and not otherwise. 21. On behalf of the respondents, learned counsel for the respondent has placed reliance on the following decisions:- (i)Collector of Central Excise, Bombay-I and ors. Vs. Parle Exports (P) Ltd., (1989) 1 SCC 345; (ii)Kaira Dist. Co-op. Milk Producers' Union Ltd., Vs. Union of India, 2007 SCC Online Guj 429; (iii)The State of Tamil Nadu Vs. Tvl. Ganesh Corporation in T.C.(R).No.1825 of 2006; (iv)Ernakulam Reg. Co-op. Milk Products Union Ltd., Vs. C.C.E., Kochi, 2008 SCC Online CESTAT 832; (v)Ercmpu (Milma) Vs. Commissioner of Central Excise, Cochin, 2013 SCC Online CESTAT 2632; (vi)Danone Foods and Beverages (I) Pvt. Ltd., 2012 (280) E.L.T. 563 (A.A.R.); (vii)Sri Chakra Milk Products LLP., MANU / AI / 0129 / 2019; (viii)Vadilal Industries Ltd., 2021 (54) G.S.T.L. 59 (A.A.R. - GST - Guj.); (ix)Tirumala Milk Products Pvt. Ltd., MANU / AI / 0063 / 2021; (x)Britannia Industries Ltd., 2022 (56) G.S.T.L. 36 (App. A.a.R. - GST - T.N.) and (xi)Gujarat Co-operative Milk Marketing ....
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....tion of such units under the GST regime. While dismissing the appeal filed by the industries which had lost of the incentives granted under the previous regime with implementation of the GST enactments, the Court declined to interfere and therefore granted liberty to the industries to approach the GST Council. 27. I have considered the arguments advanced by the learned Senior Counsel for the petitioner and the learned Senior Standing Counsel for the respondents. I have also perused the impugned Minutes of the Meeting dated 22.12.2018 of the 3rd respondent GST Council recommending the classification of "Flavoured Milk" under HS Code 2202 instead of HS Code 0402. 28. I have also considered the provisions of the Central Excise Act, 1944, Central Excise Tariff Act, 1985, Customs Act, 1962 and Customs Tariff Act, 1975. I have also perused the Notifications issued under these enactments relating to classification and fixation of rate of duty of "flavoured milk" as "Beverage Containing Milk". I have also considered the provisions of the respective GST enactment of 2017. I shall refer to them in the ensuing paragraphs. 29. I shall now proceed to answer the point in question namely....
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....cted to, or exempted from, the goods and services tax; (c) model Goods and Services Tax Laws, principles of levy, apportionment of Goods and Services Tax levied on supplies in the course of inter-State trade or commerce under article 269A and the principles that govern the place of supply; (d) the threshold limit of turnover below which goods and services may be exempted from goods and services tax; (e) the rates including floor rates with bands of goods and services tax ; (f) any special rate or rates for a specified period, to raise additional resources during any natural calamity or disaster; (g) special provision with respect to the States of Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand; and (h) any other matter relating to the goods and services tax, as the Council may decide." 34. The Hon'ble Supreme Court has also taken this view in its recent decision in Union of India versus Mohit Mineral Private Limited (2022) 10 SCC 700. A reference is made to the Summation/conclusion of the Hon'ble Supreme Court in the above case. Para....
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.... the CGST Act define reverse charge and prescribe the entity that is to be taxed for these purposes. The specification of the recipient - in this case the importer - by Notification 10/2017 is only clarificatory. The Government by notification did not specify a taxable person different from the recipient prescribed in Section 5(3) of the IGST Act for the purposes of reverse charge. 171.4. Section 5(4) of the IGST Act enables the Central Government to specify a class of registered persons as the recipients, thereby conferring the power of creating a deeming fiction on the delegated legislation. 171.5. The impugned levy imposed on the 'service' aspect of the transaction is in violation of the principle of 'composite supply' enshrined under Section 2(30) read with Section 8 of the CGST Act. Since the Indian importer is liable to pay IGST on the 'composite supply', comprising of supply of goods and supply of services of transportation, insurance, etc. in a CIF contract, a separate levy on the Indian importer for the 'supply of services' by the shipping line would be in violation of Section 8 of the CGST Act." 35. For levy of Customs Duty under the provisions of the....
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....d by the Central Government under the aforesaid provision of CGST Act, 2017 have also been issued by the State / Union Act to ensure uniformity in the rates. 43. As per explanation (iii) to Notification No.1/2017-Central Tax (Rate) dated 28.06.2017 Tariff item", "sub-heading" "heading" and "Chapter" shall mean respectively a tariff item, sub-heading, heading and chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). As per explanation (iv) to Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017 states that the "Rules for the Interpretation" of the 1st Schedule to the Customs Tariff Act, 1975 (51 of 1975), including Section and Chapter Notes and General Explanatory Notes of the 1st Schedule to the said Act shall, so far as may be, apply to the interpretation of the notification. 44. Explanations (iii) & (iv) to Notification No.1/2017-Central Tax (Rate) dated 28.6.2017 reads as under:- "Explanation: (iii) Tariff item", "sub-heading" "heading" and "Chapter" shall mean respectively a tariff item, sub-heading, heading and chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). (iv)....
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....ajor changes. Entry 8 to the First Schedule to the Second Schedule to the Notification No.1/2017-Central Tax (Rate) dated 28.6.2017 benefit of which is claimed by the petitioner for "flavoured milk" has also not seen any major changes since its inception. 50. As mentioned above under Sl.No.50 to the Second Schedule to Notification No. 1/2017-Central Tax (Rate) dated 28.6.2017, rate of tax is 6%. According to the petitioner, "flavoured milk" is classifiable under Sl.No.8 to the First Schedule to Notification No. 1/2017-Central Tax (Rate) dated 28.6.2017 and therefore liable to tax at 2.5%. 51. Extract of the rival entries from the First Schedule and Second Schedule to Notification No.1/2017-Central Tax (Rate) dated 28.6.2017 are reproduced below:- First Schedule to Notification No.1/2017- Central Tax (Rate) Second Schedule to Notification No.1/2017- Central Tax (Rate) Serial No. 8 50 Chapter/Heading/Sub heading/Tariff Item 0402 2202 99 30 Description of Goods Milk and cream, concentrated or containing added sugar or other sweetening matter, including skimmed milk powder, milk food for babies [other than condensed milk]. Beverage Conta....
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....ed for feeding infants 0401.13 - Milk powder, other than powder specially prepared for feeding infants, put up in unit containers and ordinarily intended for sale. 0401.14 - Concentrated (condensed) milk, whether sweetened or not, put up in unit containers and ordinarily intended for sale. 0401.19 - Other 0401.90 - Other" 7. It is clear from the aforesaid that all the products of milk and cream would be covered by this Chapter Heading and the addition of sugar or other sweetener would not make any difference. 8. Since the products in question are the mix of milk as well as milk powder, as far as milk, viz., flavoured milk is concerned, it is covered by sub-Heading 0401.11 and, skimmed milk powder and milk powder are covered by 0401.12 and 0401.13 respectively. Since the products in question are the mixture of the two, assessee seeks to cover it under 0401.19, viz., 'Other'. From the description of the products given aforesaid along with the Chapter Heading 04.01, in the first blush, it becomes clear that it is to be covered under 0404.90. However the submission of the learned counsel for the appellant-Revenue is that since stabilizer is add....
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....l in Amrit Food Vs. Commissioner of Central Excise, 2003 (153) ELT 190 (T). Pursuant to a remand order of the Hon'ble Supreme Court in Amrit Food Vs. Commissioner of Central Excise, 2005 (190) ELT 433 (SC), the Tribunal had rendered its decision in Amrit Food Vs. Commissioner of Central Excise, 2006 (202) ELT 545, which was appealed before the Hon'ble Supreme Court. It is in this background, the Hon'ble Supreme Court rendered its decision in Commissioner of Central Excise Vs. Amrit Food, 2015 (324) ELT 418 (SC). 56. Till 27.2.2005, "flavoured milk" was specifically classifiable under Tariff Heading 04.01 and under sub-heading 0401 .11 and attracted 'NIL' rate of duty. The said tariff entry read as under:- Heading No. Sub-Heading No. Description of goods Rate of Duty (1) (2) (3) (4) 04.01 0401 .11 Flavoured milk , whether sweetened or not, put up in unit containers and ordinarily intended for sale. Nil 57. With effect from 28.2.2005, after 8 digit code system was introduced in the Central Excise Tariff Act, 1985, all the Headings, in the Chapters underwent a sea change in tune with Harmonized System of Nomenclature (HSN). Heading 2202 90 30 ....
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....ted 27.03.2008 was issued by the Central Government under Section 11C of the Central Excise Act, 1944. 62. By Notification No.17/2008-C.E. (N.T.) dated 27.03.2008, special exemption was given to "Flavoured Milk of Animal Origin" under Section 11C of the Central Excise Act, 1944. It was issued in view of the prevailing trade practice and confusion that prevailed for period between 28.02.2005 and 14.06.2007. Text of Notification No.17/2008- C.E. (N.T.) dated 27.03.2008 reads as under: "Flavoured milk of animal origin" and Jute twine - Exemption for periods 28.2.2005 to 14.6.2007 and 1.1.2007 to 14.6.2007 respectively Whereas the Central Government is satisfied that a practice was generally prevalent regarding levy of duty of excise (including non-levy thereof) under Section 3 of the Central Excise Act, 1944 (1 of 1944) (hereinafter referred to as the said Act), on goods of the description given in table below, and that such goods were liable to duty of excise which was not being levied under Section 3 of the said Act according to the said practice, during the period as specified below: "TABLE Description Tariff sub-heading Period (1) (2) (3) ....
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....of the Hon'ble Supreme Court in Commissioner of Central Excise versus Amrit Food, 2015 (324) ELT 418 (SC). Further, in these two cases, the Tribunal was concerned with classification of "NIDO Nutrition Milk" and "NESCLAC Nutrition Milk", a type of milk shake. 66. Nestlé India Ltd versus Commissioner of Central Excise, New Delhi 2018 (8) GSTL 211, the Tribunal held as follows:- "10. The appellant has relied upon the Tribunal decisions in the case of Amrit Foods as well as Nestle India Limited. However, the Commissioner has brushed aside the reliance placed on these judgments. In the case of Amrit Foods, the dispute before the CESTAT was inter alia regarding the classification of milk shake mixes. The product constituents were milk, milk powder, sugar, glucose and stabilizers. The assessee classified the product under Tariff Heading 0404. However, the adjudicating authority classified the product under Tariff Heading 1901 on the ground that the product contained stabilizers, whose main purpose was emulsification of oil in water throughout the self life, to improve the body and texture and to impart smoothness to the product, which as per the adjudicating authority,....
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....r:- "21. Section 4 of the Act provides for the exemptions from tax. It also authorises the State Government to exempt certain goods from payment of tax as may be notified. It reads as under:- "Section 4. [Exemption] from tax. - No tax under this Act shall be payable on. (a) the sale or purchase of water, milk, salt, newspapers, or any other goods which the State Government may, by notification, exempt;" or (b) the sale or purchase of any goods by the All India Spinners' Association or Gandhi Ashram, Meerut and their branches; or (c) the sale or purchase of such goods by such other person or class of persons as the State Government may, by notification in the Gazette, exempt: Provided that while granting any exemption under clause (a) or clause (b) or clause (c) the State Government may impose such conditions including the condition of payment of such fees, if any, not exceeding eight thousand rupees annually as may be specified by the State Government by notification in the Gazettee. Explanation - In this section, expressions- (a) 'Water' does not include mineral water, aerated water, tonic water, d....
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....er of Central Excise 2018 SCC online CESTAT 3722, of the Tribunal in the context of 'whey' in Heading 0404 of Tariff is not relevant. The decision once again follows the view of the Hon'ble Supreme Court in Commissioner v. Amrit Food - 2015 (324) E.L.T. 418 (S.C.). 73. The decision of the Tribunal in Cavinkare Private Limited versus Commissioner of Central Excise. 2019 SCC Online CESTAT 7218 and the decision of the Tribunal in Nestlé India Ltd versus Commissioner of Central Excise, New Delhi 2018 (8) GSTL 211, and the decision of the Allahabad High Court in Gujarat Cooperative Milk marketing Federation Limited versus State of U.P 2017 (5) GSTL 351 (All.) are also irrelevant. 74. Merely because the Hon'ble Supreme Court upheld the view of the Tribunal in Commissioner of Customs (Import) versus NueLife Nutrition System, 2021 SCC Online 936 would not mean the contention of the petitioner has to be accepted for the reasons stated in the affidavit. 75. Thus, there is no comparison. The test that whether an artificial flavouring substance will not jettison the product from chapter 4 to Chapter 19 is not a relevant test under the GST regime. 76. The relief sought for on....
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....ng matter ... -- Other: --- Whole milk ....... --- Milk for babies 82. Chapter 22 of the Customs Tariff Act, 1975 deals with beverages, spirits and vinegar. Note 3 to Chapter 22 reads as under:- "CHAPTER 22 Beverages, spirits and vinegar Note 3: For the purposes of heading 2202, the term "non-alcoholic beverages" means beverages of an alcoholic strength by volume not exceeding 0.5% vol. Alcoholic beverages are classified in headings 2203 to 2206 or heading 2208 as appropriate." 83. The rival entries in the Customs Tariff Act, 1975 namely heading 0402 and heading 2202 of the First Schedule to the Customs Tariff Act, 1975 have been reproduced in paragraph No.51 of this order. The 3rd respondent GST Council has wrongly clarified that "Flavoured Milk" is classifiable under heading 2202 of Harmonious System of Nomenclature (HSN) based on Chapter Note 1 to Heading 0402. Relevant portion of the decision also has been extracted in paragraph No.4 of the order at the beginning. It is based on the recommendation of the Fitment Committee. 84. Specifically it is stated that the flavoured milk will come within the purview of heading 0402 9....
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....table juices of heading 2009. 90. Chapter 22 of the Customs Tariff Act, 1975 has also not defined the expression "Beverage". The ordinary dictionary meaning of the expression 'Beverage" means any type of "Drink". The word Beverage is of French origin, while "Drink" is of old English origin. 91. The Sub Heading 2202 90 to Customs Tariff Act, 1975 fall under such category "Other Non-Alcoholic Beverages" . As per Chapter Note 3 to Chapter 22 of the Customs Tariff Act, 1975, the expression "Non Alcoholic Beverage" means beverages of an alcoholic strength by volume not exceeding 0.5 vol. It reads as under:- "CHAPTER 22 Beverages, Spirits and Vinegar Notes: 3. For the purpose of heading 2202, the term "non-alcoholic beverages" means beverages of an alcoholic strength by volume not exceeding 0.5% vol. Alcoholic beverages are classified in headings 2203 to 2206 or heading 2208 as appropriate." 92. Therefore, the expression "Beverage Containing Milk" in Sub Heading 2202 90 to Customs Tariff Act, 1975can be identified only as specie of "Other Non Alcoholic Beverage" in the said Sub Heading. 93. Therefore, "Beverages Containing Milk" has to necessaril....
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....rwise provided in these regulations and it shall be free from colostrums." 100. Thus, unless otherwise provided, expression "milk" in subheading 2202 90 30 of the Customs Tariff Act, 1975 cannot include milk secreted from mammary glands of milch animal, diary animals such as cow, goats, buffalo, etc. 79. 101. The provisions of the Food Safety and Standards Act, 2006 and the provisions of the Food Safety & Standards (Food Products Standards & Food Additives) Regulations, 2011 indicate that all dairy products are to be grouped and classified together. Thus, in the Indian Context all dairy products are to be grouped together. 102. Regulation 2.1.3 of Food Safety & Standards (Food Products Standards & Food Additives) Regulations, 2011 prescribes the standard for "flavoured milk" i.e., milk made out milch animal such cattle milk. It reads as under:- "2.1.3 Standard for Flavoured Milk This Standard applies to Flavoured Milk as defined in item 1 of this sub-regulation. * 1. Description. - "Flavoured Milk" means the product prepared from milk or other products derived from milk, or both, and edible flavourings with or without addition of sugar, ....
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.... The following details shall be always declared on the label of pre-packaged product or otherwise if the product is not pre-packaged, in respect of the product offered for sale: - (i) the class of milk as per General Standard for Milk and Milk Products from which it is prepared; (ii) the heat treatment, as per the General Standard for Milk and Milk Products, to which product has been subjected to; (c) In addition to the labelling requirements mentioned above, the provisions of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011, shall apply to prepackaged products. 7. Method of Sampling and Analysis. - The methods of sampling and analysis mentioned in the manuals as specified by the Food Safety and Standards Authority of India from time to time shall be applicable." 103. Regulation 4 of Food Safety & Standards (Food Products Standards & Food Additives) Regulations, 2011 states that "milk" and "milk products" may be enriched with essential nutrients such as vitamins, minerals, etc., as specified in these regulations labelling requirements. It reads as under:- "4. Addition of Essential Nutrients - Milk and....
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....entral Government had however classified "Flavoured Milk" under sub heading 2202 90 30 as a "Beverage Containing Milk", for the purpose of fixing rate, vide Notification No.03/2005-CE dated 15.06.2007 as amended from time to time, although Chapter 4 to the Second Schedule to Central Excise Tariff Act, 1985, did not exclude "Flavoured Milk" made out of dairy milk. Later, Notification No.17/2008-CE dated 27.03.2008 was issued under Section 11C of the Central Excise Act, 1944, whereby "Flavoured Milk" which was classified under the Sub Heading 2202 90 30 was exempted between 28.02.2005 and 14.06.2007. 112. Though under Notification No.03/2005-CE dated 15.06.2007 as amended by Notification No.28/2007-CE dated 15.06.2007, the Central Government classified "Flavoured Milk" under Chapter Sub Heading 2202 90 30 and exempted "Flavoured Milk" vide Notification No.03/2005-CE dated 15.06.2007, Notification No.03/2005-CE dated 15.06.2007 was itself deleted and superseded by Notification No.15/2011-CE dated 01.03.2011. 113. Thereafter, "Flavoured Milk" was subjected to tax at 1% with reference to its Maximum Retail Price (MRP) under Notification No.49/2008-CE(NT) dated 24.12.2008, issued i....