COMMISSIONER OF CENTRAL EXCISE Vs. BRITANNIA INDUSTRIES LTD.

JUDGEMENT

(1.) Civil Appeal Nos. 4539-4540 of 2005:

(2.) From the aforesaid narration it becomes clear that it is not in dispute that the products are waffles and wafers. In fact, to put it precisely, it is known as waffles and wafers. It is also not in dispute that the aforesaid products are not coated with chocolate. Therefore, the only dispute is as to whether these products contains chocolate or not. It may be noticed that out of all the products under Chapter Heading 19.05, viz., biscuits, cakes and pastries, or waffles and wafers, some contains cocoa, as is clear from the description contained in the main Heading and if only cocoa is added or is contained in these products, that would not make it chocolate. Thus, there has to be a difference between cocoa and the chocolate that is made out of cocoa.

(3.) We find from the impugned order [: 2005 (183) E.L.T. 257 (Tribunal)] of the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') that CESTAT has not gone at all into the aforesaid aspect, viz., as to whether the product contains only cocoa or it contains chocolate. We may record that it is not in dispute that there is either cocoa or chocolate which is sandwiched between the two wafers. Thus, it was incumbent upon the CESTAT to see that the said ingredient is cocoa simplicitor or it is chocolate.