ORDER
C. Satapathy, Member (T)
1. Heard both sides. The dispute relates to classification and dutiability of “Syrup for Pepsi, Miranda etc.” In the impugned order, the Commissioner (Appeals) has given his finding as under:-
“It is observed that syrup is different from concentrate since syrup has the quality to sweets and provide the flavour to the aerated water and that the concentrate can duly provide colour, flare and flavour to the aerated water. In view of this fact the synthetic mix preparation (i.e. beverage syrup) is having a distinct name, character or use therefore, the process carried out by the appellants for production of beverage-syrup amount to manufacture in terms of Section 2(f) of C.Ex. & Salt Act, 1944 as a new product having distinct name, character and use has emerged as a result of the process carried out by the appellants.
Further after careful reading of description for the products given against the chapter heading 2108.10 it will be seen that different kind of preparations for beverages intended for use in the manufacture of aerated water are classifiable under this chapter heading. In the present case
Concentrate purchased from M/s. Pepsi Food Ltd. is one kind of preparation and the beverage Syrup manufactured by the appellants with the held of concentrate is other kind of preparation and both the preparations are having different distinct name, character and use and same are used in the manufacture of aerated water at different stages as discussed above. The preparation viz. concentrate if cleared, as such its of no used in beverage dispension for manufacture of aerated water where as the beverage syrup manufactured by the appellants is used in the automatic binding machine by the appellants is used in the automatic binding machine for soft drinks. This syrup is diluted and aerated in there machine before such aerated drinks are dispensed in small cup through tap like out of. The beverage syrup is also sold to whole sale dealer in unit package of 20 and 24 Ltrs. Capacity.
Further the appellants have not putforth any new evidence in support of their contentions. They have only reproduced the same facts what they had given at the time of reply to show cause notice. The adjudicating officer vide his Impugned order has already discussed all the points in detail. Which led to conclusion that the product viz. Beverage Syrup is altogether different preparation intended to be sued in the manufacture of aerated water and rightly classifiable under chapter subÂheading 2107.91 attracting C.Ex. duty @ 40% Adv. as Notfn. 70/95 dated 16.5.95. And from 26/05/95 on wards the same product is classifiable under sub-heading 2108.10 attracting 40% Adv.”
2. The appellants contend that subsequent to issue of the impugned order,
the Apex Court has rendered a decision in the case of Hamdard (WAKF)
Laboratories v. CCE., Meerut – 1999 (113) ELT 20 (S.C.) holding Rooh Afza to
be a beverage and not a preparation for beverage. The learned advocate for the
appellants states that the lower authorities did not have the benefit of this
decision of the Apex Court. He also states that the Chennai Bench of the
Tribunal in the appellants’ own case by final order No. 383/2002/WZB dated
23.05.2003 has referred to the Apex Court decision in the case of Hamdard
(Supra) and has remanded the matter to the original authority for fresh
decision.
3. The learned D.R. on the other hand states that the impugned goods are different from Rooh Afza which is merely a preparation for domestic use as
noted in Paragraph 7 of the cited Apex Court decision. He also relies on the
Tribunal’s decision in the following cases to support the orders passed by the lower authorities :-
1) Godrej Foods Ltd. vs. CCE., Indore - 2000 (121) ELT 231 (Tribunal) 2) Connaught Plaza Restaurant (P) Ltd. vs. CCE., New Delhi - 2003 (154) ELT 187 (Tri.-Del.)
4. After hearing both sides and perusal of the case records, we find that the Chennai Bench of the Tribunal has remanded the matter in the Appellants’ own case for re-decision to the original authority in the light of the cited Apex Court decision as well as the contentions raised in the appeal relating to Chapter Note 7 to Chapter 21 introduced by the 1995 budget. We find that similar contentions have also been raised by the appellants before us. As such, we think it fit to set aside the impugned orders and remit the matter to the original authority for re-decision on the same grounds on which remand has been allowed by the Chennai Bench. The appellants shall be allowed a reasonable opportunity of hearing before passing a fresh order.
Appeal is allowed by remand.
(Pronounced in Court on 1.1.2004 )