Union Of India (Uoi) And Anr. vs Food Specialities Ltd.

1. Shri Vellapally, learned Senior Counsel for the respondent-assessee, states that this appeal arises out of a consequential order made pursuant to the decision reported in Dalmia Industries Ltd. v. CCE, (1992)61 ELT295(Trib) pertaining to classification in respect of the same assessee. He submits that the question of classification was decided by the Tribunal in the assessee's favour and even though a caveat was filed in this Court by the assessee, there is no intimation of any appeal being filed by the department against the Tribunal's decision pertaining to classification. He submits that irrespective of the merits of the Tribunal's decision on the question of classification, if the decision in the assessee's favour has become final, the question of the consequential order about quantum made by the Tribunal in favour of the assessee, cannot alone be challenged by the department. He submits that this appeal must fail for this reason alone because the question of correctness of the view taken by the Tribunal on the question of classification is no longer open in respect of the product known as "New Sapan Dairy Special".

2. In view of the above statement made by the learned counsel for the assessee-respondent, and it not having been shown to us that the department has challenged the Tribunal's decision on the question of classification reported in Dalmia Industries case, 1 (1992)61 ELT295(Trib) this appeal must fail for this reason alone.

3. The appeal is dismissed.

CAs Nos. 1567 and 2482-84 of 1993

4. The submission of the learned Additional Solicitor General is that the expression "skimmed milk" also includes "partially skimmed milk" and for this reason the product should be classified under Heading 0401.13. In the impugned judgment the view taken is that "partially skimmed milk powder" is a separate marketable commodity from "skimmed milk powder" and, therefore, it has to be classified under Heading 0401.19 and not 0401.13 as claimed by the Revenue. In the impugned judgment, detailed reasons are given for rejecting the Revenue's contentions. Apart from referring to the fact that partially or completely skimmed milk are mentioned as separate products in the main heading itself, it has been pointed out with reference to ISI specification as well as Prevention of Food Adulteration Rules and the international standard that "partially skimmed milk powder" is different from "skimmed milk powder" and is so recognised therein. Nothing is shown to us against this material to suggest that a different view is preferable for any reason. There is, thus, no ground to interfere in the appeals.

5. The appeals are, accordingly dismissed.