TaxTMI 
TaxTMI 
2009 (2) TMI 201
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....otification No. 2/94-C.E., dated 1-3-94 as proposed by Revenue and confirmed by Original Authority. The respondents claimed both under sub-heading no. 2001.10 eligible for exemption Notification No. 2/94-C.E. and allowed by Commissioner (Appeals), who set aside the Adjudication Orders and allowed the appeals filed by the respondents. Hence, the Revenue filed these appeals. 3. Ld. DR on behalf of the Revenue reiterates the grounds of Appeals. He submits that Heading 20.01 indicates "preparation of vegetables, fruits, nuts and other parts of plants". He submits that the product "Chaman Bahar Powder" is processed out of 48 ingredients and only 2 items namely Bel and Amla are fruits and vegetables. He further submits that the other items - Pon....
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....00 passed by the Dy. Commissioner, Division-II, Noida in the case of D.S.M. Foods Ltd. where "Mouth Freshener" classified in sub-heading No. 2001.10 and excluded from sub-heading No. 2108.99. He submits that the Revenue filed appeal before the Commissioner (Appeals) against the order of the Dy. Commissioner in the case of DSM Fruits Ltd., which was rejected. Again, Revenue filed appeals before the Tribunal, which was rejected by the Tribunal by Final Order No. 851-853-08-EX., dated 3-11-2008 in the case of CCE, Noida v. D.S.M. Fruits Ltd. [2009 (239) E.L.T. 54 (Tri.-Del.)]. 5. After hearing both the sides and on perusal of the records, we find that the respondent manufactured and cleared Chaman Bahar Powder, Chaman Gulab Katri and Pono Cre....
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....rew the attention of the Bench, to the composition of the Kirana Masala from the said order as under :- "Harr (Fruit & Vegetable) Mulethi "    " Ram Dana "    " Dal Chini Kesia "    " Sacchrine (about 200 Kgs.) Amla (Fruit & Vegetable) Belgiri (Fruit & Vegetable) Semar Musra "    " Maida Lakdi "    " Tejpatra "    " 8. The origin of the above ingredients as mentioned in the Adjudication Order are reproduced below :- "(i) Harah - It is fruit of tree. It is digestive (Page....
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....o a plant, the edible part, of which is used as table vegetable. Similarly, definition of "Fruits" as a plant part used chiefly in a desert or sweet course appears to be most appropriate. Therefore, the ld. DR contended that only Bel and Amla are fruits and vegetables and use of other items would not be taken into account of preparation of fruits and vegetables. So, the items are classifiable under Chapter 21 under "miscellaneous edible preparations". 10. On perusal of the description of Heading No. 20.01, we find that it covers "preparations of vegetables, fruit, nuts or other parts of plants". There is no dispute that all the items are vegetable and fruit used in the manufacture of finished goods. So, we are unable to accept the finding ....
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....f plants" and classification in this sub-heading is not excluded if they are not vegetables and fruits in the common parlance provided they are prepared from parts of plants. On the other hand Heading 21.07 and later Heading No. 21.08 is a residual entry described as "Edible Preparations not elsewhere specified". I also agree that according to Rule 3 of Interpretation Rule & judgements of the Supreme Court in Speed Work Rubber Co. v. C.C.Ex and Dunlop India Ltd. v. U.O.I., reported at 2002 (143) E.L.T. 78 & 1983 (13) E.L.T. 1566 respectively that for the purpose of classification in the tariff schedule a specific entry will prevail over general or residual entry." 12. We find that the Tribunal in the case of M/s. D.S.M. Fruits Ltd. (supra)....
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....ation substantially or significantly. We find that the product manufactured by them can be "consumed as such" as submitted by the learned Advocate. Preparation falling under Chapter 20 as well as preparations falling Chapter 21 are both edible in nature. Going by the common products mentioned in Chapter 21, we are of the rightly considered as preparation of fruits, nuts or other parts of plants. When the product is covered under the description of the Chapter 20, the need to go to the Chapter 21 which is residuary in nature does not arise. Therefore, we do not find any justification to interfere with the classification as upheld by the Commissioner (Appeals) in the proceeding dealt with in Appeal No. E/4518/04. Consequently, Commissioner's ....