NESTLE INDIA LTD. Vs. CCE

JUDGEMENT

(1.) In these three appeals, filed by M/s. Nestle India Ltd., the common issue involved is whether "Nestle Everyday Whitener", "T Mate Dairy Whitener" and "Dairy Powder 5 -P" are classifiable under sub -heading 0401.19 of the Schedule to the Central Excise Tariff Act, as claimed by them or under sub -heading No. 0401.13 of the Tariff as confirmed by the Commissioner (Appeals) under the impugned Orders.

(2.) Shri B.L. Narasimhan, learned Advocate, submitted that they manufacture sweetened partially skimmed milk powder (PSMP), under different brand names, of which fat content varies between 1.50% to 26%; that the main case made out by Revenue is that Note 1 to Chapter 4 of the Tariff which defines 'Milk' to mean "full cream or partially or completely skimmed milk", applies to milk powder also; that commercially the varieties of milk, namely, full cream milk, partially skimmed milk and completely skimmed milk are recognised as separate products and hence, there was necessity of introduction of Note 1 to Chapter 4; that, however, in regard to milk powder, there is no such note equating powders made from three different varieties of milk; that thus there is no artificial definition to equate 'milk powder' to include skimmed milk powder, partially skimmed milk powder and whole milk powder; that accordingly Note 1 does not have application in the present case; that Note 1 cannot be thus borrowed to understand the sub -heading 0401.13 of the Tariff which only applies to "milk powder"; that as no other reasoning has been given by the Adjudicating Authority, the classification of the impugned product is not correct being done on the premises of Note 1 to Chapter 4.

(3.) The learned Advocate finally submitted that if the Appellants are held liable to pay duty, they would be entitled to the benefit of Modvat credit on inputs used in the manufacture of the impugned product; that the price is to be considered as cum -duty price and the statutory deductions has to be allowed as per the judgment of the Supreme Court's decision in the case of CCE, Delhi v. Maruti Udyog Ltd.