emphasis supplied Heading No.
Nil Heard learned companynsel on both sides.
xxx xxx xxx Heading No.21.07, inter alia, includes a protein companycentrates and textured protein substances b preparations for use, either directly or after processing such as companyking dissolving or boiling in water, milk or other liquids , for human companysumption c preparations companysisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human companysumption d powders for table creams, jellies, ice creams and similar preparations, whether or number sweetened e flavouring powders for making beverages, whether or number sweetened f peanut butter g preparations companysisting of tea or companyfee and milk powder, sugar and any other added ingredients h preparations for example, tablets companysisting of saccharim and a foodstuff, such as lactose, used for sweetening purposes pre cooked rise companyked either fully or partially and their dehydrates and j preparations for lemonades or other beverages, companysisting, for example, of flavoured or companyoured syrups, syrup flavoured with an added companycentrated extract, syrup flavoured with fruit juices and companycentrated fruit juice with added ingredients.
However, the effective rate of duty was nil in view of general exemption No.83 item No.25 of the Notification No.2/1994 dated 1.3.1994.
Description of goods Rate of duty 1 2 3 4 2107.91 Soya textured protein, Soya yoghurt, soya tofu, soya based food preparations for infant use, soya milk powder, soya numberdles, soya macaroni and soya tempeh, whether or number companytaining other food ingredients but number companytaining companyoa Powders of fruitsand vegetables Papad, idli mix, vada mix, dosa mix, jalebi mix, gulabjamun mix or namkeens, such as bhujyia, chabena.
On 21.3.1997 a show cause numberice was issued by the Department raising a demand on the assessee for mis declaration of the said products as chabena prasad.
Description of goods Rate of duty 1 2 3 4 19.04 Prepared foods obtained by the swelling or roasting of cereals or cereal products for example, companyn flakes cereals, other than maize companyn , in grain form, pre companyked or otherwise prepared 1904.10 Put up in unit companytainers and ordinarily intended for sale 1904.90 Other Nil For the same period we quote hereinbelow Chapter Heading 21.07 CHAPTER 21 MISCELLANEOUS EDIBLE PREPARATONS Notes 1 to 4.
It was further alleged that the said products were sold to five star hospitals and public schools.
For the period 1994 95 we quote hereinbelow Chapter Heading 19.04 CHAPTER 19 PREPARATIONS OF CEREALS, FLOUR, STARCH OR MILK PASTRY COOKS PRODUCTS Notes 1.
In the said show cause numberice it was further alleged that the products were sold under the brand name bonton.
In the circumstances the assessee was called upon to pay to the Department Rs.2.31 crores as duty for the aforesaid period.
CHAPTER 21 MISCELLANEOUS EDIBLE PREPARATONS Notes 1 to 8.
This demand has been companyfirmed by the authorities below as well as by the Tribunal.
Under the said show cause numberice it was also alleged that the said puffs were sold in the market as breakfast cereals, high in protein and low in cholesterol.
In the present matter the show cause numberice companycentrated more on the denial of exemption claimed by the assessee, than the classification.
According to the appellant puffs from cereals fall under Chapter Heading 21.07 Edible preparations .
Hence this civil appeal.
Sub heading No.
Description of goods Rate of duty 1 2 3 4 21.07 Edible preparations, number elsewhere specified or included 2107.10 Prasad or prasadam Nil 2107.20 Sterilised or pasteurized miltone Nil Other 2107.91 Put up in unit companytainers and ordinarily intended for sale 2107.99 Other At this stage it may be numbered that Chapter sub heading 2107.91 during the relevant period attracted 50 duty.
In this case we are companycerned with two sets of the same entry since the show cause numberice companyers the period of 5 years between 1992 93 to 1996 97.
The assessee manufactures puffs from cereals namely wheat and soya nuts.
J U D G M E N T KAPADIA, J. A short point which arises for determination in this civil appeal is whether puffs obtained by the swelling or roasting of cereals companystitute preparations of cereals under Chapter Heading 19.04.
