ORDER
S.S. Sekhon, Member (T)
1.1 Appellants are inter alia engaged in the manufacture of edible foods preparation termed and marketed as “Brown & Polson/Skippy Jelly Bites” (hereinafter referred to as said goods). After considering the contents said to be constituting 75% water, 23% sugar, Corragenem 1% Colour etc 1% is packed and/offered in retail tetris packs as individual rounded bits ready to eat/consume.
1.2 The lower authorities have upheld the classification of the said goods under heading 21/8/99 of CETA 85. However they denied the exemption under sr. no 8 of the Table to notification 6/2000 dtd 1/3/200. The relevant entry in the notification reads as
“8.2108.99. Sweetmeats (known as ‘misthaus’ or’mithai’ or by any other name), namkeens, bhujia, mixture, chabena and similar edible preparations is ready for consumption form and papad.”
1.4 The earlier order dtd 26.12.2000 of the original authority had after recording the coverage against sr. no 8 of the notification formulated two propositions –
i) whether the said goods can be treated a “Sweet meat”
ii) whether they are similar edible preparation or else.
Thereafter by going through the meaning of “Sweet Meat” in various dictionaries, it was found tat products right in sugar, prepared with sugar is called as sweet meats & since the said goods were having 75% water and 23% sugar therefore it was found –
“…it substantially rich in sugar and accordingly is a sweet meat is not correct as no sweet meat can be manufactured without sugar and similarly all the products manufactured with sugar are not falling under the category of sweet meats.
On careful reading of the relevant entry at sr. no 8 under Notification no 6/2000 dtd 1/3/2000, it is seen that the said entry is divided into two parts viz.
1. Sweet meat (known as ‘misthans’ or ‘mithai’ or ‘mithai’ or by any other name); namkeens, bhujia, mixture, chabena and;
2. similar edible preparations in ready for consumption form and papad.
In regards to first part, I find that the misthans or mithai is being prepared with the help of sugar and the same is readily available with the sweet meat shop. Which is commonly known in the market on the same name. However no skippy jelly is available at sweet meat shop. Further, common trade parlance of skippy jelly is distinct form the misthans or mithai. Therefore it cannot be covered under the category of sweet meat (known as misthans or mithai or by any other name, namkeen, bhujia, mixture of chabena)
In regards to second category, i.e. similar edible preparations in ready for consumption form. I find that though the product ‘Skippy jelly bite’ des not require to carry further process for consuming the same it do not falls under the category of similar edible preparation ready for consumption form as the general likeness in the trade parlance is quite different from misthans or mithai.
Therefore, on both the counts referred herein above assessee’s submission is not sustainable and accordingly the product in question is not eligible for exemption”.
1.5 The exemption was denied & demands of duty confirmed. Hence this appeal for claim of exemption.
2.1 After hearing both sides & considering the issues it is found –
a) We find that the term ‘sweet meat’ used in the notification is a generic term & would cover all sorts of edible preparations not elsewhere specified, falling under heading 21.0899 which is a sort of repository of residual entry for edible preparation. The classification of the said goods under 21.08.99 is not in doubt or contest. Sweet edible preparation containing 23% sugar in ready to consume form will fall under the heading and will be covered by the term “Sweet meats’. Restricting the generic term ‘Sweet meat’ to the bracketed portions of ‘misthan or mithai” only, is therefore not called.
b) The lower authorities are in error by looking for sale at Sweet Meat shops selling Misthan or Mithai e.g. Rasgullas packed in tins of the famous Calcutta dealer are sold in places other than Mithai or Misthan shops. Mithai is now packed & sold off the shelf in department stores. It de not cease to be mithai. Relating the term sweet meat to such entities which are sold at traditional ‘Halwai’ shops, is placing an artificial restriction to the coverage of the notification which is not envisaged. Once the said goods are sweet meats, as found, they are entitled to the coverage of the notification.
c) The term “Similar edible preparation” & interpretation of the word ‘similar’ cannot be restricted to mithai as the term does not mean ‘the same’ or “identical”. It would include all sorts of preparations based on sugar, not elsewhere specified & which are ready for consumption. The said goods are ready for consumption and on made up of sugar.
d) There is force in the argument that the predecessor notification no 5/98 CE the benefit of exemption was restricted to sweet meats made at premises not covered by the word ‘factory’ as defined under factories Act 1948. therefore the deletion/doing away of that stipulation would indicate the extension of the exemption to the products emerging in the factory of the appellants herein.
e) the notification benefit is available and the demands cannot be upheld. There is no case or cause for penalty the same is to be set aside.
3.1 In view of the findings, the order is set aside & appeal allowed by ordering the grant of eligibility under sr. no 8 notification 6/2000 to the said goods and confirming the classification under 21.8.99.