TaxTMI 
TaxTMI 
2005 (1) TMI 168
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....tention of the Department that product 'Wafer' is classifiable under Chapter 1905.31. However the Appellate Authority held that the said Chocolate Cream did not qualify as "Chocolate in any form" of Chapter 1803.00 of the Tariff but more squarely covered as other food preparation containing Cocoa of Chapter sub-heading 1804.00 and therefore he held that wafer containing such cream will be classifiable under chapter 1905.90. The above view of the Appellate Authority is not correct, before examining this, it may be pointed out at the outset that before Central Excise Tariff Act, 1985, the Central Excise Tariff was not harmonized on line of BTN [1996 (25) E.L.T. 473 (S.C.)] M/s. Atulya Glass Industries Ltd. v. CCE. However, unlike the earlier Central Excise Tariff, the Central Excise Tariff Act, 1985 is harmonized on the lines of H.S.N. [C.CE. Shillong v. Wood Craft Product Ltd. [1995 (77) E.L.T. 23 (S.C.)]. And in case of any doubt regarding the classification of the product, reference can be made to the guidelines mentioned in the Explanatory Notes of the H.S.N unless otherwise expressed intention is indicated in the Indian Tariff. In the background of this....
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....sub-heading 1804.00 in the category of other food preparation containing Cocoa. In doing so, the Appellate Authority has completely overlooked the scheme of Central Excise Tariff Act, 1985 designed on lines of HSN and which has been settled by Hon'ble Supreme Court in case of Wood Craft Product which specifically mentioned that the guidelines in HSN should be followed unless otherwise intended in the Indian Tariff. The Appellate Authority has also not given any justification for deviating from the new scheme of the Central Excise Tariff and ruling of the court of law on the issue, therefore, his view as mentioned earlier is not proper and legal. 2. The Appellate Authority also held the classification of Chocolate Cream in the Chapter Sub-heading 1804 of the Tariff on the basis of CEGAT decision in the respondents own case vide order no. 802/86 dated 3-9-1986. In this case, the dispute was regarding classification of Bourhborn Cream manufactured by the Respondents, duty before the year 1986, when new Central Excise Tariff Act, 1985 had not come into existence. The adjudicating authority held the classification of this product under the then Excise Tariff Item No. 1A(4) ....
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....or by following the said CEGAT's decision which is based on ISI termology. Further, the Appellate Authority has not indicated the reason for deviation from the said ruling of the Apex Court. Following the ratio of the Apex Court, it may be pointed out that definition of Chocolate given in the PFA Act which the Appellate Authority also relied on for resolving the dispute in the present case, cannot be applied. There is not dispute that PFA Act has been enacted for different objectives which cannot be followed in resolving the dispute in Excise classification matters. Thus, the Appellate Authority's view on the point discussed earlier is also not proper and legal. 3. The Appellate Authority in holding that the Chocolate Cream in question is not chocolate also relied on the Chemical Examiner Test Report. According to him - "The cream is found to be brown coloured pasty mass composed of sugar, vegetable oil, emulsifier, 'together with cocoa and other additives'. This pasty mass is reported to contain cocoa on fat free basis of 16.6% and on sample basis 7.9% by wt. Accordingly, it is difficult to accept the finding that this brown coloured pasty mass co....
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....onsistency. The facts are that the Chocolate Cream, as has been explained with H.S.N. provision and the test report, is nothing but Chocolate in nature. It is also a fact that the said Chocolate cream is contained in between layers of the Wafer which has not been denied by the respondents. Therefore the Wafer in question containing Chocolate becomes classifiable under Chapter Sub-Heading 1905.31 beyond doubt. This fact is supported by mentioning the term (Chocolate Cream on the trade packages). The mentioning of the Chocolate Cream on the trade packages is nothing but only demonstration of chocolate which is contained in the wafer. There is no contradiction regarding the presence of Chocolate in the Chocolate cream used in the wafer and the message which is conveyed by the description on the trade packages. It is not a case that content in the wafer is different and the term used on the Trade Package is different. Therefore, content of the cream used in the Wafer and the term used on the Trade Package convey the same meaning that there is a presence of Chocolate in the cream. The same conclusion has been drawn by the Apex Court in the case of CCE v. Fusebase Eltoto Ltd. [1993 (67) ....