ORDER
J.H. Joglekar, Member (T)
1. The applicant imported “Non-Alcoholic Bavaria Malt Beverage”. The goods arrived on 6-3-98, Bill of Entry was filed on 16-4-98. The classification under the Customs Tariff was under sub-heading 2202.90. There was however a dispute on the ITC (HS) classification. The only available entry was 220290 00.10. The description against this entry was “Diabetic Beverages including Diabetic Syrup”. The importers contended that this classification was not appropriate to the goods. The Commissioner of Customs made a reference to the DGFT on 20-1-98 and pennitted clearance of the goods against a bond. On record there was no reply to this letter. On 17-2-99 there was a letter from the DGFT to the appellant to the effect that these goods merited classification only under 220290 00.10.
2. On the date of shipment of the goods the EXIM policy prescribed an SIL for clearance of the goods falling under this heading. However at the time of importation the goods were freely importable. On the observation that the policy as prevailing on the date of shipment would matter; the Additional Commissioner imposed a penalty of Rs. 1,25,000/- which was upheld in the impugned order of the Commissioner (Appeals). The importers filed an appeal before the Tribunal and the present application for waiver of pre-deposit.
3. We observe that the Revenue Deposit of Rs. 70, 034/- having been adjusted against the above penalty, this application is for the remainder namely Rs. 54,966/-.
4.
The ITC (HS) classification for heading 22.02 was :-
22.02
Waters, including
mineral waters and aerated waters, containing added sugar or other sweetening
matter or flavoured and other non-alcoholic beverages, not including fruit or
vegetable juices of heading No. 20.09
22021000
Waters, including
mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured.
22021001
Lemonade
Free
220210 09
Other than lemonade
Free
220290 00
Other
220290 00.10
Diabetic
Beverages including Diabetic Coke & Diabetic Syrup
Free
It would appear that in the “other” category only Diabetic Beverages would fall. This phrase has not been defined in the Tariff. Ordinarily these would be Beverages which are prescribed by a physician to person suffering from Diabetics. The description of the contested goods does not prima facie show their suitability at diet.
5. For this reason and also on the observation that major portion of
the penalty stands deposited, we grant waiver of pre-deposit of the remaining penalty and stay its recovery during the pendency of the appeal.