TaxTMI 
TaxTMI 
2022 (3) TMI 1603
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.... 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 cocoa butter and hydrogenated vegetable oils. We find....
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.... 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, it is evident that the entire case hinges on the fact whether or not cocoa butter is used in the manufacture of the impugned products and whether or not the use of HVO would affect the classification under Central Excise Tariff. We find that the appellants have pleaded that the concerned Notification has no de....
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....nd 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 the Adjudicating Authority an affidavit dated 30-3-2010 sworn by Sh. Suresh Bhandari, Deputy General Manager of the appellants. The affidavit clearly states that the averment in the SCN that the wrapper furnished vide letter dated 25-3-2009 is the wrapper of Nestle Milky bar Eclairs for the period after 1st January, 2008 is factual....
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....ar 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 relied upon the case of Nestle decided in 2008 (supra). Learned Senior Counsel for the appellants submits that it has been brought to the notice of the Adjudicating Authority that the following points distinguish the issue decided by Co-ordinate Bench in the above matter stating that Tribunal entirely relied upon HSN Explanatory Notes to Heading No. 1806 to come to the conclusion that vegetable oil can be used as an ingredient in the Milky bar choo falling under [Heading] ....