AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 1603
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....olate Factory Vs. CCE, Mangalore [2021(375) ELT 209 (Tri. Bang.)]. 3. Smt. D.S. Sangeetha, learned Additional Commissioner(AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. She further submits that against this Tribunal's order in the appellant's case, as cited by the learned counsel, the Revenue has filed appeal before the Hon'ble Supreme Court. On query from the Bench whether any stay has been granted, she fairly concedes that there is no stay against the Tribunal's order. 4. We have carefully considered the submissions of both sides and perused the records. We find that the issue whether the appellant's product viz. Nestle Milkybar Eclairs is white chocolate or otherwise and consequently eligible for exemption under Notification No.12/2012-CE dt. 17/03/2012 has been finally decided by this Tribunal in it's Final Order No.20394-20401/2020 dt. 14/07/2020. The relevant order portion is reproduced below:- 22. We find that both the Revenue as well as the appellant do not dispute the classification of the impugned products under CETH 1704. The only difference in the argument is based on the presence or absence of ingredients like....
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.... White chocolate composed of sugar, cocoa butter, milk powder and flavouring agents, but not containing more than mere traces of cocoa (cocoa butter is not regarded as cocoa) 22.2 As per Tariff Entry 1704 refers to sugar confectionery (including white chocolate) not containing cocoa. Chapter 17 does not include sugar confectionery containing cocoa or chocolate (other than white chocolate) in any proportion and sweetened cocoa powder (Heading 18.06). HSN Explanatory Notes to Heading 1704 90 other says that the 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 white chocolate composed of sugar, cocoa butter, milk powder and flavouring agents but not containing more than mere traces of cocoa (cocoa butter is not regarded as cocoa). It is clear from the above that white chocolate can be classified under Chapter 17 and white chocolate composes sugar, cocoa butter, milk powder and flavouring agents, but not containing more than mere traces of cocoa. 23. Going by the above, ....
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....ot the impugned products merit classification as white chocolate in terms of the HSN Explanatory Notes. It is the averment of the appellants that they have not used cocoa butter at all in Milky bar and have discontinued the use of same in Eclairs w.e.f. 1-1-2008. Learned Commissioner refers to sample of packing material (polybag and jar labels) of Nestle Milky bar Eclairs a letter submitted by the appellants on 25-3-2009, observes that the packing material shows that the ingredients are Liquid Glucose, Sugar, Milk Solids, Partially Hydrogenated Vegetable Oils, Cocoa Butter, Salt and Emulsifiers (soya Lecithin & 471). On going through the available case records, it is seen that the above letter of the appellants refers to a letter dated 23-3-2009 written by the Department wherein it was specifically asked to supply the wrappers/packing materials in respect of Milky bar Eclairs before January, 2008. In this context, we find that it is not correct on the part of the Adjudicating Authority to rely upon the said wrappers pertaining to the period before January, 2008 to conclude that the impugned goods contained cocoa butter during the period in dispute. The appellants submitted before t....
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....rtment has not discharged the burden of proof that the impugned products contained cocoa butter and thus were not eligible for exemption in terms of the Notification cited above. 26. On going through the affidavit signed by the appellants and exhibits at pages 179, 181, 183, we find that the ingredients contained in Nestle Milky bar before and after 1-1-2008 are sugar, partially hydrogenated vegetable oils, milk solids and soya lecithin contains added artificial flavouring substance. Exhibit at Page 179 is extracted as below : 26.1 The ingredients of Nestle Milky bar Eclairs before and after 1-1-2008 are as follows : Before 1-1-2008 After 1-1-2008 (a) Liquid Glucose (b) Sugar (c) Milk Solids (d) Partially Hydrogenated Vegetable Oils (e) Cocoa Butter (f) Salt (g) Emulsifiers (Soya Lecithin & 471) (a) Liquid Glucose (b) Sugar (c) Milk Solids (d) Hydrogenated Vegetable oils (e) Salt (f) Emulsifiers (Soya Lecithin & 471) The extracts at pages 181 & 183 are as follows : 27. We find that Revenue has relie....
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..... Further, the classification of Nestle Milky bar and the applicability of the exemption Notification No. 6/2002-C.E. as amended or Notification No. 3/2006-C.E. is not an issue before us. Hence, we refrain from offering any comments in the matter. We have already held that the presence of the partially hydrogenated vegetable oil in Milky bar Choo will not take it out of the purview of White Chocolate and we have given detailed reasons and justifications for holding so". 28. We find that the instant case, the issue which remains to be decided is as to whether the impugned products contained cocoa butter so as to be categorised as White Chocolate under CETH 1704 and thus rendering them ineligible for exemption contained in the Notification Nos. 6/2002-C.E., 3/2006-C.E. and 12/2012-C.E. Therefore, we find that the facts of the present case are different from those dealt by the Co-ordinate Bench in the case of Nestle Products decided in 2008 (supra) and therefore, we find that the ratio of the decision has no precedent value as far as this case is concerned. Moreover, we find that Tribunal, Allahabad in the case of Marko Foods v. CCE, Kanpur reported in 2019 (370) E.L.T. ....