Four judgments
nagarathinam
(Querist) 02 February 2015
This query is : Resolved
I need below four judgments early as possible.
Thanking you.
1. Bhagyalakshmi Poha Industries vs. Commissioner (2007 (215) ELT 455 (Tri.-Bang)
2. Mahavir Food Products vs. Commissioner (2007 (211) ELT 29 (Tri.-LB)
3. Mini Food Products (2008 (231) ELT 631 (Tri.-Ahmd)
4. Bhagyalakshmi Poha Industries vs. Commissioner (2008 (2321 ELT 627 (Tri.-Bang)
Devajyoti Barman
(Expert) 03 February 2015
sorry, decisions are not supplied here.
Guest
(Expert) 03 February 2015
Search India Kanoon WebSite
Anirudh
(Expert) 03 February 2015
Dear Mr. Nagarathinam,
Pl. find pasted below, the desired decisions.
2007 (215) E.L.T. 458 (Tri. - Bang.)
IN THE CESTAT, SOUTH ZONAL BENCH, BANGALORE
Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T)
BHAGYALAKSHMI POHA INDUSTRIES
Versus
COMMISSIONER OF C. EX., BANGALORE-III
Misc. Order No. 227/2007, dated 25-4-2007 in Application No. E/stay/46/2007 in Appeal No. E/71/2007
Stay/Dispensation of pre-deposit - ‘Avalakki’ (rice flakes/poha) earlier classified under Heading 11.01 of Central Excise Tariff at nil rate of duty - Revenue proceeded to reclassify product under Heading 19.04 ibid as per Tribunal’s decision in the case of Favourite Food Products [2001 (127) E.L.T. 131 (Tribunal)] - Appellants made out a prima facie case in their favour since said judgment overruled by Larger Bench decision in the case of Mahavir Food Products [2007 (211) E.L.T. 29 (Tribunal-LB)] - Pre-deposit waived and recovery stayed - Section 35F of Central Excise Act, 1944. [para 4]
Stay granted
CASES CITED
Favourite Food Products v. Commissioner — 2001 (127) E.L.T. 131 (Tribunal) — Referred [Paras 1, 4]
Mahavir Food Products v. Commissioner — 2007 (211) E.L.T. 29 (Tribunal-LB) — Referred [Paras 2, 4]
REPRESENTED BY : S/Shri K.S. Ravi Shankar and N. Anand, Advocates, for the Appellant.
Shri Anil Kumar, JDR, for the Respondent.
[Order per : S.L. Peeran, Member (J) (Oral)]. - The appellants are required to pre-deposit duty amount of Rs. 1,76,30,214/- and equivalent amount towards penalty. The appellants were carrying on the process of bringing into existence ‘Rice Flakes/Poha’, locally known as ‘Avalakki’ bearing the brand name “Bhagyalakshmi”. The Revenue has proceeded to classify this item under Heading 1904 of CET and has confirmed the demand for the period 1-4-2002 to 31-3-2005. The benefit of Notification No. 08/2001-C.E., dated 1-3-2001 has also been denied to the appellant. The Commissioner has proceeded to classify the item under the said heading holding the item to be Rice Flakes/Poha on the basis of Tribunal ruling rendered in M/s. Favourite Food Products v. CCE, Rajkot - 2001 (127) E.L.T. 131 (Tri.-Mum.). The appellants’ contention was that the rice was being converted into flakes which is nothing but a Cereal and liable to be classified under CH 11.01 with ‘Nil’ rate of duty. However, their plea has been rejected solely on the basis of the Tribunal ruling rendered in the case of M/s. Favourite Food Products.
2. The learned Counsel files a copy of the Larger Bench judgment rendered in the case of Mahavir Food Products & Others v. CCE, Vadodara and Vice Versa - [2007 (211) E.L.T. 29 (T) = 2007 (79) RLT 456 (CESTAT-LB)], which has overruled the decision of M/s. Favourite Food Products (cited supra). It is his submission that in Favourite Food Products case, the item was Corn while in the present case, it is Rice. In any case, both were classified under Chapter Heading 1904 as Prepared Food. The item is not a Prepared Food and to be treated only as Flakes for classification under CH 11.01 with ‘Nil’ rate of duty. He submits that the Larger Bench judgment overruled the decision relied by the Commissioner and, therefore, they should be given full waiver in the matter.
3. The learned JDR files written submission and submits that there is no comment with regard to the applicability of the Larger bench judgment now cited by the learned Counsel. He prays for time to get the comments from the Commissioner.
4. We have carefully considered the submissions. We notice that the item in question was earlier treated for classification under CH 11.01 at ‘Nil’ rate of duty. However, the Revenue has proceeded to reclassify the same under CH 1904. The learned Commissioner has classified the product in the light of the judgment rendered in M/s. Favourite Food Products (cited supra). This judgment has been overruled by the Larger Bench judgment rendered in the case of Mahavir Food Products (cited supra). Prima facie, the appellants have a very strong case. As the learned JDR wants to get comments from the Commissioner on the applicability of the Larger Bench judgment, we are proceeding to grant Ad Interim Stay against the recovery of the amounts till the stay application is disposed of. The Commissioner shall file his comments before the next date of hearing. Prima facie, the issue is covered. The stay application and the appeal would be taken up for final hearing. Meanwhile, Revenue should not proceed to recover the amounts. Matter to come up for hearing on 15th June, 2007. Registry to issue this order out of turn.
(Pronounced and dictated in open Court)
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2008 (231) E.L.T. 627 (Tri. - Bang.)
IN THE CESTAT, SOUTH ZONAL BENCH, BANGALORE
Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T)
BHAGYALAKSHMI POHA INDUSTRIES
Versus
COMMR. OF C. EX.-III, BANGALORE
Final Order Nos. 939-941/2008, dated 5-8-2008 in Appeal Nos. E/71, 888 and 891/2007
Poha or avalakki classifiable under Chapter 11 of Central Excise Tariff and not under Chapter 19 ibid as contended by Revenue and held under impugned order. - It is seen that beyond the processes mentioned in Chapter 11, no further process has been carried out. In Larger Bench’s decision in the case of Mahavir Food Products, Chapter Notes of both 11 and 19 have been elaborately examined and it has been held that when there is no process beyond that which is mentioned in Chapter 11, the item cannot be classified under Chapter 19. Moreover, many decisions have been cited to show that avalakki is also a particular form of rice. Even in the export of the item, it has been stated that the Customs are accepting this as a particular form of rice only. [para 5]
Demand - Limitation - Extended period - Issue involved relating to classification of product and interpretation of Tariff entries - In such a case, there could not be an allegation of suppression of facts or misrepresentation with intent to evade duty - Proviso to Section 11A(1) of Central Excise Act, 1944. [para 5]
Appeals allowed
CASES CITED
Commissioner of Commercial Tax v. TTK Healthcare Ltd. — 2007 (7) VST 1 (S.C.) — Referred [Para 4.2]
Favourite Food Products v. Commissioner — 2001 (127) E.L.T. 131 (Tribunal) — Distinguished [Paras 3.3, 4, 4.1, 5]
Mahavir Food Products v. Commissioner — 2007 (211) E.L.T. 29 (Tribunal-LB) — Relied on [Paras 4, 4.2, 5]
REPRESENTED BY : S/Shri K.S. Ravi Shankar and R. Dakshina Murthy, Advocates, for the Appellant.
Shri K. Sambi Reddi, JDR, for the Respondent.
[Order per : T.K. Jayaraman, Member (T)]. - These appeals have been filed against the following orders which are given in the tabular column.
Appeal No. OIO/OIA Duty Education Cess Penalty Fine
E/71/ 2007 OIO No. 8/2006 dt. 1-12-2006 Rs. 1,75,34,808/- Rs. 95,406/- Rs. 1,76,30,214/- Rs. 3,000/-
E/888/2007 OIA No. 39 & 40 dt. 31-8-2007
Rs. 19,98,332/- Rs. 39,967/- Rs. 10,000/- Nil
E/891/2007 Rs. 15,39,053/- Rs. 30,781/- Rs. 15,000/- Nil
2.Shri K.S. Ravi Shankar and R. Dakshina Murthy, learned advocates appeared on behalf of the appellants. Shri K. Sambi Reddi, learned departmental representative appeared on behalf of the Revenue. He argued forcefully referring extensively to HSN Notes.
3.We heard both sides. The issue involved in all these appeals is the correct classification of a product called ‘Poha’. The appellants classify them either in Chapter 10 failing which under Chapter 11 of the Central Excise Tariff, whereas, the department is of the view that it would be classifiable under Chapter 19. In that case, it would attract levy of duty. This is the main dispute. The department is of the view that the item would be covered under Chapter 19 : “preparations of cereals, flour, starch or milk; pastrycooks’ products, etc.”, if the item is classified under Chapter 19, then it would be liable to duty. This is the main contention of the Revenue. The learned SDR referred our attention to HSN 19.04 which reads as follows :
19.04 - Prepared foods obtained by the swelling or roasting of cereals or cereal products (For Example, corn flakes); cereals other than maize (corn) in grain form or in the form of flakes or other worked grains (except flour, groats and meal), pre-cooked or otherwise prepared, not elsewhere specified or included.
Whereas, the appellant states that if these items are to be treated as rice, it would be covered under Chapter 10 or they would be covered under Chapter 11.06.
3.1The learned SDR invited our attention to the manufacturing process of the impugned item. The impugned item is known as “Poha”. Its manufacturing process is as follows :
The process adopted for the manufacture of Poha/Avalakki by the appellants are as follows :
• First raw paddy is procured which contains high moisture and impurities.
• It is cleaned and then soaked in water for about 3 to 5 hours.
• Then the water is drained and the paddy is kept in heaps for 2 to 3 hours for brining about equal moisture.
• Later on it is heated in the electrical rotating drums using sand medium preheated to about 130 degree Celsius.
• This process brings softness to the paddy.
• Then the paddy is fed into the edge runner having two rollers for pressing which results in rice flakes or beaten rice or poha etc.
• It is then sieved for separating the flakes from the broken rice and husk.
• Subsequently, the hot rice flakes/poha are kept for natural cooling.
• The cooled poha/rice flakes are packed in 500 Gm and 1 kg unit containers (Polythylene bags) and jute gunny bags of 5 kg, 10 kg, 30 kg and 60 kg.
3.2Further, the learned SDR stated that the Poha is a manufactured product and it answers the description of Chapter 1904, the description of which is already given above. He said that the Commissioner has elaborately discussed and stated that these items are nothing but precooked preparations and they would certainly answer the description of 19.04. The learned departmental representative took great pains to show that avalakki or poha would answer the description in 19.04. It was also emphasized that this should be considered as a ready to eat food because it can be just mixed with milk or jaggery and consumed. He also relied on certain websites to show that it can be just taken along with jaggery or milk and consumed. In that sense, it was strongly urged that the impugned items should be considered as prepared food. It was also argued that they are packed in unit containers, therefore, they would be perfectly classifiable under Chapter 19.
3.3Further, the learned SDR referred to the decision of the Tribunal in the case of M/s. Favourite Food Products v. CCE, Rajkot - 2001 (127) E.L.T. 131 wherein it has been categorically held that Poha whether of Rice, Maize or Wheat merit classification under Heading 19.04 of the Central Excise Tariff. In view of the above finding, the learned Adjudicating Authority had confirmed the demand. There was also an issue of clubbing of the clearances of other two units, on account of that the SSI benefit was also denied. Thus, the duty was confirmed in the Orders passed by the Commissioner. Similarly, the lower authorities confirmed the demand for different periods and they have been upheld by the Commissioner (A), which are also impugned. Since all impugned orders deal with the samo issue, we are taking them up together for common order.
4.The learned advocate stated that the Adjudicating Authority has not properly applied the provisions of law to the impugned product. According to the learned advocate, the impugned product is only one form of rice. For this, they relied on certain decisions of the Supreme Court and some other judicial decisions. It was also pointed out that the case-law relied on by the Commissioner has been overruled by the Larger Bench decision in the Mahavir Food Products & Ors. v. CCE, Vadodara and vice versa - 2007 (211) E.L.T. 29 (Tri.-LB) wherein it is held that harmonious construction of the two Headings 19.04 and 11.04 shows that if flakes processed to an extent covered under Heading 11.04 namely stage of steam heated or rolled between heated rollers would fall under the said heading and if processed beyond so as to make them prepared foods would fall under Heading 19.04. It was held that the product in question ‘makkai poha’ was classifiable only under Heading 11.01 and not under Chapter 19. In this case, the decision of the Favourite Food Products (supra) case has also been overruled. It was also brought to our notice that the department had not gone in appeal against the Larger Bench decision in the case of Mahavir Food Products (supra) and the same has been accepted.
4.1The learned advocate pointed out that after referring to the relevant Chapter Note 19.04 and stated that 19.04 would not be applicable because in the preparation of poha no cooking is involved. It was strongly emphasized that mere heating of the paddy cannot be equated with a cooking. But in the Favourite Food Products case (supra), the Adjudicating Authority himself has accepted that there was cooking in pressure cooker but that is not the case in these present appeals. Therefore, the facts of the Favourite Food Products case (supra) can be distinguished.
4.2Further, the learned advocate relied on the decisions in the case of Commissioner of Commercial Tax, Indore & Other v. TTK Healthcare Ltd. - 2007 (7) VST 1 (SC) wherein it has been held that process of frying and addition of preservatives to be applied before ‘fryums’ become consumable. Fryums cannot be considered as cooked food. Even the High Court held that fryums to be cooked food but the Hon’ble Apex Court reversed the decision on the ground that fryums were not cooked food and they were undercooked items which could not be consumed directly. It was strongly emphasized that avalakki or poha has to be further cooked before it can be taken. It may be edible but it cannot be considered as cooked food. It was also emphasized that the classification of the item is one of the interpretation of the statute and there is no justification in invoking the extended period because there is actually no suppression of facts involved. A large number of case laws were also cited. It was further emphasized that even though the avalakki is packed in 10 kg, 15 kg, 20 kg, they are put together into gunny bag of 100 kg, therefore, it cannot be said that they are cleared in unit containers. In view of all these submissions and also relying on the decision of the Mahavir Food Products case, it was contended that the item would not be classifiable under Chapter 19 and it would be classifiable only under Chapter 11.04.
5.On a very careful consideration of the issue, we find that the Commissioner has mainly relied on the decision of the Favourite Food Products case but however, we note that the Favourite Food Products case which dealt with poha has been overruled by Larger Bench. Moreover, in the Favourite Food Products case, there was question of cooking in pressure cookers but in the present case there is, actually no cooking in pressure cookers. The process of manufacture had already been described. It is seen that beyond the processes mentioned in Chapter 11, no further process has been carried out. Moreover, the Favourite Food Products case has been overruled by the Larger Bench decision in the Mahavir Food Products case where the Chapter Notes of both 11 and 19 have been elaborately examined and it was held that when there is no process beyond that which is mentioned in Chapter 11, the item cannot be classified under Chapter 19. In our view, we cannot say that mere heating of the paddy in the rollers before making avalakki is a process of cooking and which is something more than what is mentioned in Chapter 11. Moreover, many decisions have been cited to show that avalakki is also a particular form of rice. Even in the export of the item, it has been stated that the Customs are accepting this as a particular form of rice only. In view of all these factors, we do not find any merit in the impugned orders. Moreover, the longer period has been invoked. In our view, the whole thing is the question of classification and matter of interpretation of the entries in the Customs Tariff. In such a case, there cannot be any allegation of suppression of facts or misrepresentation with an intend to evade duty. All the case laws cited by the learned advocates are applicable to the facts of the present case. The Favourite Food Products case has been distinguished. Moreover, the case on which the Adjudicating Authority and lower authorities have relied on has been overruled in the Larger Bench decision. In view of all the above observations, we do not find any merit in the impugned orders. Therefore, we set aside the impugned orders and allow the appeals with consequential relief.
(Pronounced in open Court on 5-8-2008)
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2007 (211) E.L.T. 29 (Tri. - LB)
IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD
[LARGER BENCH]
Justice R.K. Abichandani, President, S/Shri M.V. Ravindran, Member (J) and M. Veeraiyan, Member (T)
MAHAVIR FOOD PRODUCTS
Versus
COMMISSIONER OF C. EX., VADODARA
Misc. Order Nos. M/339-343/2007-WZB/Ah'bad, dated 12-3-2007 in Appeal Nos. E/3156-3159 & 2931/2001
Poha - Makai poha, classification of - Corn boiled and flattened between rollers, but not roasted - Classifiable whether under Heading 11.04 of Central Excise Tariff as ‘flakes of maize’ or under Heading 19.04 ibid as ‘prepared foods’ - Product cannot be eaten as prepared food either by itself or even soaked, as demonstrated - Heading 11.04 ibid covers products having not reached stage of cooked preparation ready for consumption - Heading 19.04 ibid covers both prepared foods obtained by swelling or roasting of cereals as well as cereal products - Harmonious construction of two headings show if flakes processed to extent covered under Heading 11.04 ibid namely stage of steam heated or rolled between heated rollers, would fall under said heading and if processed beyond so as to make them prepared foods, would fall under Heading 19.04 ibid - Product in question, ‘Makai poha’ classifiable under Heading 11.01 ibid. [paras 4, 5.2, 6.2, 8]
Reference answered
CASE CITED
Favourite Food Products v. Commissioner — 2001 (127) E.L.T. 131 (Tribunal) — Overruled [Paras 1, 3, 7]
REPRESENTED BY : Shri J.C. Patel, Advocate, for the Appellant.
Dr. M.K. Rajak, DR, for the Respondent.
[Order per : Justice R.K. Abichandani, President (for the Bench)]. - These matters have been referred to the Larger Bench by the referral order dated 23-11-2006 for reconsidering the earlier decision of the Tribunal in Favourite Food Products v. CCE, Rajkot, reported in 2001 (127) E.L.T. 131, by which it was held that the goods known as “makai poha” were classifiable under Heading 19.04 of the Schedule to the Tariff Act. The Division Bench found itself unable to agree with the ratio of the said decision by observing that Heading 19.04, would cover prepared food ready for consumption. The Bench took note of the contention that “poha” in question was corn which had been boiled and flattened between rollers, but it was not ready for consumption food.
2. The learned Counsel appearing for the appellants contended before us that Heading 19.04 was applicable to the items which can be called prepared food obtained by swelling and roasting of cereals or cereal products. It was submitted that there was no process of roasting adopted, as is done in the case of “corn flakes” which is a prepared food usually taken in breakfasts. He submitted that addition of salt while steaming the grains or milling them for the purpose of flattening them into flakes did not bring the product under Heading 19.04, because something beyond that process was required. He submitted that flakes of corn which were not prepared food ready for consumption, but which were merely a corn product of steamed and flattened corn would fall in Chapter 11 under sub-heading 11.04.23, which covered flakes of maize (corns).
3. The learned Authorized Representative for the Department, on the other hand, adopted the reasoning and findings of the authorities below for contending that corn flakes manufactured by the appellants were classifiable under Heading 19.04. He submitted that the evidence disclosed that maize grains were cooked for 1-1/2 hours and salt and baking powder were added. He submitted that after such a long cooking process, the product cannot remain uncooked. It was, therefore, a cooked preparation, which could be consumed and the fact that the product could be processed further by frying to make it ready for consumption, will not take it away from the ambit of the Heading 19.04. He heavily relied upon the reasoning of the decision in Favourite Food Products v. CCE, Rajkot (supra), in which it was held that when grains are cooked in a pressure cooker, they get absorbed by water. He pointed out from paragraph 8 of the said judgment that the contention that ‘poha’ cannot be eaten without further frying, was not correct and it was not substantiated by any evidence. The Division Bench did not pay any importance to the expert report, referred in paragraph 9 of the judgment, that the sample of maize flakes (makai poha) was harder to chew than the samples of other two products (corn flakes) as prepared for breakfast.
4. We have heard both the sides at length. After demonstrations were made in the Court, which we need not dilate upon, it became clear to one and all that the ‘makai poha’ which is the product in question cannot be eaten as a prepared food either by itself or even soaked. We would, however, base our conclusions on the reading of the provisions and their interpretation as done hereafter.
5. Chapter 11 of the Schedule to the Tariff Act deals with products of milling industries, malt starches, insulin, wheat, gluten. Chapter Note 1(c) declares that this chapter does not cover corn flakes or other products of Heading No. 19.04. In Chapter Note 2, it is specified that the products from the milling of cereals listed thereunder fall under this Chapter if they have by, weight on the dry product, which are starch content exceeding 45% and ash content after deduction of any added minerals not exceeding that indicated in the list. So far as maize (corn) is concerned, which is at S. No. 4 the prescribed ash content should not exceed 2%. Heading 11.01 is of products of milling industry, including flours, groats, meal and grains of cereals, and flour, meal or flakes of vegetables.
5.1 The HSN Explanatory Notes corresponding to Chapter 11 clarifies that this chapter includes products from the milling of sweet corn of Chapter 7, other than milling residues of Heading 23.02. Chapter 7 which relates to edible vegetables and roots and tubors clarifies in Note 1 that the word “vegetables” will, inter alia, include sweet corn. It is also clarified that this chapter excludes, inter alia, as per item (e) corn flakes and the like obtained by “swelling or roasting in the form of worked grains”. Dealing with sub-heading 11.04, the HSN Explanatory Notes clarifies that this Heading covers all unprepared milling products of cereals except flours and groats, meal and pellets and the residues of cereals. As regards rolled or flaked grain, the HSN lays down as under :-
”This heading covers :
Rolled or flaked grain (e.g., barely or oats), obtained by crushing or rolling the whole grain (whether or not dehulled) or kibbled grain or the products described in Items (2) and (3) below and in Items (2) to (5) of the Explanatory Note to heading 10.06. In this process, the grain is usually steam-heated or rolled between heated rollers breakfast foods of the ‘corn flakes’ type are cooked preparations ready for consumption and therefore fall, like similar cooked cereals, in heading 19.04”.
5.2 It will be seen from the provisions of Chapter 11, sub-heading 11.04 and the corresponding Explanatory Notes that, flaked corn, which is steam-heated or rolled between heated rollers, but which has not reached the stage of a cooked preparation ready for consumption would be covered under sub-heading 11.04.
6. Chapter 19 of Schedule I to the Tariff Act deals with preparation of cereals, flour, starch or milk; pastry cooks’ products. Under Heading 19.04 prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, corn flakes); cereals [other than maize (corn)] in grain form or in the form of flakes or other worked grains (except flour and meal), pre-cooked or otherwise prepared, not elsewhere specified or included. The HSN Notes corresponding to Chapter 19, referred to Chapter Note 4, which reads as under :-
“For the purposes of Heading No. 19.04, the expression “otherwise prepared” means prepared or processed to an extent beyond that provided for in the headings of or Notes to Chapter 10 or 11”. [emphasis added]
Under HSN Explanatory Note 1904, which corresponds to the sub-heading 19.04 of the Schedule to the Tariff Act the sub-headings are different. In Heading 1904 of the Schedule to the Tariff Act, sub-heading 1904.10 reads : “Put up in unit containers” for which 13% duty is provided while sub-heading 1904.90 is the residuary sub-heading “other” for which ‘nil’ rate is provided. The corresponding HSN Notes, however, refers to the following entries :-
“1904.10 - Prepared foods obtained by the swelling or roasting of cereals or cereal products
1904.20 - Prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals
1904.90 - Other”
6.1 Though apparently the sub-headings are differently worded in the schedule and in the Explanatory Notes, it would appear that the rate of duty was prescribed only if the prepared foods covered under 19.04, were put up in unit containers. However, this will not detract from the analysis reflected in the Explanatory Notes, which throws light on the scope of the Heading 19.04. The expression “prepared food” obtained by swelling or roasting of cereals or cereal products which occurs both in the Schedule of Heading 19.04 and the corresponding Explanatory Notes is explained in the HSN Notes in the following terms :-
“(A) Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, corn flakes).
This group covers a range of food preparations made from cereal grains (maize, wheat, rice, barley, etc.) which have been made crisp by swelling or roasting. They are mainly used, with or without milk, as breakfast foods. Salt, sugar, molasses, malt extract, fruit of cocoa (See Note 3 and the General Explanatory Note to this Chapter) etc. may have been added during or after their manufacture.
This group also includes similar foodstuffs obtained, by swelling or roasting, from flour or bran.
Corn flakes are made from grains of maize by removing the pericarp and the germ, adding sugar, salt and malt extract, softening with steam and then rolling into flakes and roasting in a rotary oven. The same process may be applied to wheat or other cereal grains.
‘Puffed’ rice and wheat also fall in this group. These products are prepared by subjecting the grains to pressure in a moist, heated chamber. Sudden removal of the pressure and ejection into a cold atmosphere causes the grain to expand to several times its original volume.
This group further includes crisp savoury food products obtained by submitting moistened cereal grains (whole or in pieces) to a heating process which makes the grains swell, these being subsequently sprayed with a flavouring consisting of a mixture of vegetable oil, cheese, yeast extract, salt and monosodium glutamate. Similar products made from a dough and fried in vegetable oil are excluded (heading 19.05).”
6.2 It will be noticed that under Heading 19.04 of the Schedule to the Tariff Act, both prepared foods obtained by swelling or roasting of cereals as well as cereals products such as corn flakes are covered. On a harmonious construction of these two, namely Headings 11.04 and 19.04, it would appear that if corn flakes are processed beyond the extent, which is provided in Chapter 11, so as to make them prepared foods, they would fall under Heading 19.04, but if they are processed only to the extent which is covered by Heading 11.04, namely till the stage of being steam-heated or rolled between heated rollers, they would fall only under Heading 11.04, because at that stage they are not breakfast food commonly known as “corn flakes” which is a cooked preparation ready for consumption.
7. For the foregoing reasons, we are not in a position to subscribe to the contrary view which has been taken in Favourite Food Products (supra), which hereby stands overruled.
8. From the material which is on record, it is clear that in these matters process for making corn flakes had not gone beyond the stage of being semi-heated and rolled between rollers. Therefore, the product in question would be covered by Heading 11.01 of the Schedule to the Tariff Act and will be classifiable as such. The reference is answered accordingly in all these appeals.
9. All the appeals will now be placed before the regular Division Bench for making the final orders after hearing both the sides on any other issue that may be arising in the appeals.
(Dictated and pronounced in the open Court)
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2008 (231) E.L.T. 631 (Tri. - Ahmd.)
IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD
[COURT NO. II]
Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T)
MIKI FOOD PRODUCTS
Versus
COMMISSIONER OF CENTRAL EXCISE, VADODARA-I
Final Order No. A/513/2008-WZB/AHD and Misc. Order No. M/349/2008-WZB/AHD, dated 25-3-2008 in Misc. Application (Early Hearing) No. 136/2008 in Appeal No. E/2563/2005
Maize Pauva - Classification under Heading 11.01 of Central Excise Tariff stood decided in earlier proceedings involving different period in appellants’ own matter - Impugned order classifying impugned item under Heading 19.04 ibid set aside. [para 3]
Appeal allowed
CASE CITED
Mahavir Food Products v. Commissioner — 2007 (211) E.L.T. 29 (Tribunal) — Referred [Para 2]
REPRESENTED BY : Shri P.M. Dave, Advocate, for the Appellant.
Dr. Majoj Kumar Rajak, SDR, for the Respondent.
[Order per : Archana Wadhwa, Member (J)]. - After allowing the early hearing application, we proceed to decide the appeal itself, inasmuch as the issue involved is covered in their own case.
2.The disputed issue is the classification of Maize Pauva. Revenue has classified the same under Heading 19.04 whereas the appellant has claimed that the same is falling under heading 11.01. In the earlier appeal of the appellant for a different period, the Tribunal vide its order No. A/2018/WZB/AHD/07 dated 31-7-07, by following the Larger Bench decision of the Tribunal in the case of M/s. Mahavir Food Products - 2007 (211) E.L.T. 29 (Tribunal) = 2007 (79) RLT 456 (CESTAT- LB) had remanded the matter to the original adjudicating authority for fresh decision. The said order passed by the Joint Commissioner in de novo proceedings is also placed on record being order Nos. 15 to 22/Dem/JC/Anand/07-08 dated 26-11-2007 dropping the proceedings in favour of the assessee and holding that the maize product is properly classifiable under Heading 11.01 of Central Excise Tariff.
3.Inasmuch as the issue now stands decided, we set aside the present impugned order and allow the appeal with consequential relief to the appellant. The early hearing application also stands disposed of.
(Dictated and pronounced in the open Court)
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nagarathinam
(Querist) 03 February 2015
Lots Of Thanks MR.Anirudh.
Rajendra K Goyal
(Expert) 03 February 2015
Expert Anirudh has pasted as per your requirement.
Guest
(Expert) 03 February 2015
Excellent Efforts to Provide the Querist Rightly.Really Appreciatable.Now the Future Querists Requirements would be solved by Referring the Expert.
