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Commr. of Cus., C. Ex. & S.T., Guntur V/S Ushodaya Enterprises Ltd.

    Final Order No. A/30024/2018 in Appeal No. E/239/2008

    Decided On, 23 January 2018

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench Hyderabad

    By, MEMBER

    For Petitioner: K. Gopal Rao, Assistant Commissioner (AR) And For Respondents: M.V.S. Sridhar, Advocate

Judgment Text

1. This appeal is filed by the Revenue against Order-in-Appeal No. 67/2007 (G) CE, dated 27-11-2007. We considered the submissions made by both sides and perused the records.

2. On perusal of records, it transpires that the dispute in the case is regarding classification of 'Pulihora Paste' and 'Biryani Masala Paste'. The respondent have classified the said products under Chapter 9 and Chapter 20 respectively of the Central Excise [Tariff] Act, 1985 claiming benefit of "nil" rate of duty, while Revenue in the show cause notice as confirmed by the adjudicating authority sought to classify the said products under Chapter 21 as mixed condiments and seasoning liable to Central Excise Duty at the applicable rate. Aggrieved

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by such an order of the adjudicating authority, an appeal was preferred before the First Appellate Authority, by the impugned order the First Appellate Authority has set aside the Order-in-Original and allowed the appeals filed by the respondents. The Revenue's case in the grounds of appeal is directed against the First Appellate Authority to approach the classification of this item is the wrong to that extent and has not considered the fact that 'Pulihora Paste' is used directly for consumption, hence it would not fall under Chapter 9, it would merit under Chapter heading should be 21. It is the claim, that the First Appellate Authority has wrongly relied upon the experts opinion as there was no necessity of seeking opinion of expert for the classification of 'Pulihora Paste' it is of tamarind concentrate is very clear from the records; as classification of 'Biryani Masala Paste' it is the submission it would not fall under Chapter 20 as the said heading will not cover the 'Biryani Masala Paste' and that setting aside the demand on limitation is also incorrect.

3. Learned Departmental Representative reiterates the grounds of appeal.

4. Learned Counsel draws our attention to the impugned order and submits that order of the First Appellate Authority is correct and legal and also submits that subsequently also, by an order dated 27-11-2007 identical issue has been decided in their favour by Order-in-Appeal No. 67/2007 (G) CE, dated 27-11-2007 and produces the copy of the same; submits that C.B.E. & C. Circular No. 205/39/96-CX, dated 30-4-1996 also clarifies the 'Puliyogare mix or powder' would merit classification as spices or mixed condiments and seasonings; as regards the 'Biryani Masala Paste', he submits the Tribunal in the case of Commissioner of Central Excise, Mumbai-III v. Narendrakumar & Co. vide Final Order No. 2/99/2007, dated 24-6-2008 is clearly on the issue and it has been held that 'Biryani Masala Paste' would not fall under Chapter 20 it will fall under Chapter 9 and the respondents have claimed same under Chapter 20 the effect being that product 'Biryani Masala Paste' is attracting "nil" rate of duty in both Chapters.

5. On careful consideration of submissions made by both sides, and the impugned order is passed by the First Appellate Authority, we find that in respect of 'Pulihora Paste', the First Appellate Authority has recorded the following findings which in our view are articulated correctly to classify the product under Chapter 9 :

7. The adjudicating authority termed the reliance placed by the appellant on the Board Circular No. 205/39/96, CX F. No. 16/4/95-CX-I, dated 30-4-1996 as misplaced and further said that the product 'Pulihora Paste' merits classification under Chapter heading 2103. It is true that the Circular aims at drawing a distinction between classification of the products under Chapter 2103 90 40 vis-à-vis Chapter 21.08, but also makes it clear as to what is meant by "Spices" and what is meant by "Mixed Condiments and Seasonings". It defines "Spices", as a group of vegetable products, rich in essential oils and aromatic principles and remain in Chapter 9 of CET as long as the added quantity does not affect the essential character of the mixture as a spice. It also categorically says that 'products which are predominantly mixtures of spices/condiments/seasonings and which are used as such or in the making of food preparations mainly for their aromatic, flavouring or seasoning properties would merit classification under the specific entry of Spices in Chapter 9 or 21.03 of Central Excise Tariff Act. The Board Circular also emphasizes to say that the essential character of these substances is their function viz., to add flavour, aroma and pungency to various food preparations. Vide para 3.3 of Circular, the Board makes it clear that the heading which provides most specific description shall be preferred to headings providing a more general description. The impugned 'Pulihora Paste' not only consists of predominantly spices, but the essential character of constituents i.e., aromatic, flavour and seasoning properties of the spices is retained. Further, the Circular also reiterates the vital point that Heading 21 in HSN excludes spices of Chapter 9. All these facts would establish that the reliance placed by the appellant on Board Circular is proper and can be interpreted authoritatively for classification.

8. The adjudicating authority appears to have erred by terming "tamarind" as not being a spice and "Pulihora Paste" as it is commonly understood is not considered as a "Spice". While saying so, he termed it "mixed condiments or seasonings" by placing reliance on the definition given in Concise Oxford Dictionary 11th Edition 2004. Further relying on HSN Explanatory Notes for Chapter Sub-Heading 2103, he held that the presence of spices in the constituents of "Pulihora Paste" is not significant enough to give the mixture the essential character of a spice. The finding is erroneous as the constituents like (1) tamarind; (2) Mustard Seed; (3) Turmeric Powder; (4) Green Chillies; and (5) Curry Leaves account for 62.65% which are nothing but "Spices" or "Edible parts of Plants". The essential character of these 'Spices" viz., aromatic, flavouring and seasoning, etc., would definitely form part of the resultant product "Pulihora Paste". It is understood that "Pulihora Paste" is not a ready to eat product but it has to be added with cooked rice, fried in hot edible oil, ground/cashew nuts if desired. Such a functional use of the impugned product is exclusively for rendering "Pulihora" the food preparation with aromatic, flavouring or seasoning properties. The department has also not adduced any further evidence as to why the "Pulihora Paste" is classified as "mixed condiment" to fall under tariff sub-heading 2103 of Central Excise Tariff Act.

The above reproduced findings are well reasoned one and merit acceptance by the Bench and we concur with the same. The Revenue's grounds of appeal seems to be on the semantics and go against view expressed by the Central Board of Excise & Customs which is incorrect.

6. As regards the 'Biryani Masala Paste', we find strong force in contentions raised by the Learned Counsel, that the judgment of the Tribunal in the case of Narendrakumar & Co. (supra), squarely covers the issue in favour and we do not find any reason to deviate from such a view. Accordingly, we hold that the impugned order is incorrect and legal and does not require any interference. The impugned order is set aside and the appeal is rejected