Dry Tech Processors (I) Pvt. Ltd vs Cce, Bhopal

[Arising out of Order-in-Original No.08-09/COMMR/CEX/BPL-II/2014 dated 28.02.2014 passed by the Commissioner of Central Excise, Customs and Service Tax, Bhopal]

For approval and signature:

HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)

HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)

1. Whether Press reporters may be allowed to see the

order for publication as per Rule 27 of the CESTAT

(Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the

CESTAT (Procedure) Rules, 1982 for publication in

any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy

of the Order?

4. Whether Order is to be circulated to the Departmental

authorities?

__________________________________________________

Dry Tech Processors (I) Pvt. Ltd. Appellant

Vs.

CCE, Bhopal  Respondent

Present for the Appellant : ShriS.P. Tavkar, Consultant

Present for the Respondent: Shri.M.S. Negi, DR

Coram:HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)

HONBLE MR.S.K. MOHANTY, MEMBER (JUDICIAL)

Date of Hearing/Decision: 19/01/2015

FINAL ORDER NO. 50508/2015

PER: RAKESH KUMAR

Heard both the sides.

2. The point of dispute in this case is as to whether the product called Fresubin DM, Fresubin vanilla, Fresubin high-fibre, Fresubin Chocolate and Fresubin Mango, being manufactured by the appellant is eligible for concessional rate of duty of 1% advalorum exemption under Notification No.1/2011-CE dated 01.03.2011 (Sl.No.19). There is no dispute that the product is manufactured from hydrolysed corn starch (45-50%), Sugar (15-20%), Milk Protein (15-20%) Vegetable oil (15-20%) with added vitamins and flavouring material. There is also no dispute that the product, in question, is classifiable under heading 2106 9099. The only dispute is as to whether the goods are covered by Sl.No.19 of the table to the Notification No.1/2011-CE which covers all kinds of foods mixes including instant food mix. While according to the appellant, the goods are ready to consume food mix which can be consumed by adding water to it, according to the Department the goods are food supplement and are not covered by Sl.No.19 of the Notification.

3. Though today this matter has been listed for hearing of the stay application, Shri S.P. Tavkar, Consultant, appearing for the appellant, pleaded that earlier the Tribunal had heard the appeal No.E/305/2010, E/2893/2010, E/2895/2010, E/2962/2012 & E/57485/2013 filed by the same appellant and involving identical issue pertaining to the previous period and those appeals have been allowed by the Tribunal. He, therefore, requested for final disposal of the matter. Since the appeals for the previous periods mentioned above filed by the same appellant and involving identical issue and pertaining to previous period, have been allowed by the Tribunal, it is decided to waive the requirement of pre-deposit and take up these matters for final disposal.

4. In view of the Tribunals order No.54994-54998/2014 dated 24.12.2014 in the appeals mentioned above holding that the products, in question, is covered by the entry all kind of food mixes including instant food mix in the exemption Notifications, this appeal also has to be allowed. Accordingly, the impugned order is set aside and the appeal is allowed.

5. The stay application also stands disposed of.

[Dictated & Pronounced in the open Court].

(S.K.MOHANTY) (RAKESH KUMAR)

MEMBER (JUDICIAL) MEMBER (TECHNICAL)

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