ORDER
P.C. Jain, Member (T)
1. Question involved in the present matter is regarding the classification of Popcorn and demand of duty for the period prior to 1-3-1987 under the New Tariff effective from 28-2-1986. The original authority held the product classifiable under Tariff Heading 1904.10 and also demanded the consequential duty for the entire period before 1-3-1987 and after 1-3-1987.
2. On appeal by the respondents herein, before the lower appellate authority, the findings of the lower appellate authority namely the Collector of Central Excise (Appeals) are as follows :-
“I find, that the classification of the subject ‘Popcorn’ was a subject matter for consideration in another order of Assistant Collector, Central Excise, Division-VII, dated 1-7-1987 arising from a Show Cause Notice issued a few days before the impugned Show Cause Notice’s dated 11-7-1987. A finding was reached by the Assistant Collector classifying the subject product ‘Popcorn’ packed in unit containers under Chapter sub-heading 1904.90 as “others” at Nil rate during the period prior to 1-3-1987. Consequently, there existed an approval Classification in respect of the subject product for the period from November, 1986 to February, 1987 under Chapter sub-heading 1904.90 prior to the date of the issue of the impugned order. I therefore, find no justification in confirmation of demand for duty based on Chapter sub-heading 1904.10 in respect of ‘Popcorn’ cleared by the appellant during the period from November, 1986 to February, 1987. However, the liability to duty on Popcorn in respect of clearance from 1-3-1987 to 31-3-1987 in the Financial Year 1986-87 shall stand in consideration of the subsequent amendment and the findings of the Assistant Collector in the impugned order.
In consideration of the above position, the impugned order shall stand modified in respect of the demand, which shall be restricted only to the clearances from 1-3-1987 for the Financial Year 1986-87.1, also find that there exists no basis in the imposition of penalty on the appellants in this case, which is set-aside.”
3. We have heard both sides. It is only the Revenue who has filed this appeal against the impugned order which set aside the demand of duty for the period November, 1986 to March, 1987. The respondents are not in appeal before us although the appeal for the period March, 1987 is against them. We observe that Popcorn were not liable to be classifiable under Tariff Heading 1904.10 in view of the tariff description under the said heading which is as follows:
“1904.10 – Corn flakes, wheat flakes put up in a unit container intended for sale.”
4. From the above, it is very clear that corn flakes and wheat flakes alone fall under the residual Heading 1901.90 which is liable to duty. Consequently, we do not find any infirmity in the impugned order and do not find any substance in the Revenue’s appeal and therefore set aside the appeal of the Revenue.