@JUDGMENTTAG-ORDER
1. Civil Appeal Nos. 4539-4540 of 2005 : The dispute which arises in the present appeals pertains to classification of the following products of the
respondent :-
1. Chekkers Choco 40 P
2. Chekkers Fly Choco
3. Chekkers Choco 640 P and
4. Chekkers Choco ATC
2. The two entries which are involved are both in Chapter Heading 19.05 under the sub-heads ""Waffles and wafers"". Whereas the Revenue wants
the aforesaid products to be covered by Entry 1905.31 which is ""Coated with chocolate or containing chocolate"", the case of the assessee is that it
would come in the residual sub-category ""Other"" which is 1905.90. For better understanding of the aforesaid dispute, we reproduce Chapter
Heading 19.05 with its sub-heads as under :-
Bread, pastry, cakes, biscuits and other bakers'' wares, whether or not containing
cocoa, communion wafers, empty cachets of a kind suitable for pharmaceutical use,
19.05
sealing wafers, rice paper and similar products
Biscuits :
In or in relation to the manufacture of which any process is ordinarily carried on with the
1905.11 -
aid of power
1905.19 - Other
1905.20 - Cakes and pastry
- Waffles and wafers :
1905.31 - Coated with chocolate or containing chocolate
1905.39 - Other
1905.90 - Other
3. From the aforesaid narration it becomes clear that it is not in dispute that the products are waffles and wafers. In fact, to put it precisely, it is
known as waffles and wafers. It is also not in dispute that the aforesaid products are not coated with chocolate. Therefore, the only dispute is as to
whether these products contains chocolate or not. It may be noticed that out of all the products under Chapter Heading 19.05, viz., biscuits, cakes
and pasteries, or waffles and wafers, some contains cocoa, as is clear from the description contained in the main Heading and if only cocoa is
added or is contained in these products, that would not make it chocolate. Thus, there has to be a difference between cocoa and the chocolate that
is made out of cocoa.
4. We find from the impugned order [2005 (183) E.L.T. 257 (Tribunal)] of the Customs, Excise & Service Tax Appellate Tribunal (hereinafter
referred to as ''CESTAT'') that CESTAT has not gone at all into the aforesaid aspect, viz., as to whether the product contains only cocoa or it
contains chocolate. We may record that it is not in dispute that there is either cocoa or chocolate which is sandwiched between the two wafers.
Thus, it was incumbent upon the CESTAT to see that the said ingredient is cocoa simpliciter or it is chocolate.
5. We may also record the submission of Mr. V. Lakshmikumaran, learned counsel appearing for the respondent, that what is sandwiched
between the two wafers would not be covered by the expression ""containing"" inasmuch as the said product should be inside the wafers and not
sandwiched. All these issues need to be decided by the CESTAT which we do not find in its order to have been decided. On the contrary, the
CESTAT proceeds on the basis that these are biscuits.
6. Accordingly, the impugned order is set aside and the matters are remitted back to the CESTAT for fresh consideration. It hardly needs to be
clarified that it would be open for both the parties to contest all their submissions in support of their respective cases.
Civil Appeal No. 4621 of 2006
Civil Appeal No. 42 of 2009
7. The product here may be different but the issue is same and therefore, for the reasons mentioned above, these appeals also stand remanded
back to the CESTAT for fresh consideration.