COMMISSIONER OF CENTRAL EXCISE Vs. BHARAT STARCH INDUSTRIES

JUDGEMENT

(1.) IN this appeal, filed by the Revenue, the issue involved is whether Corn Gluten Meal is classifiable under Heading 23.01 of the Schedule to the Central Excise Tariff as confirmed by the Commissioner (Appeals) in the impugned order or under heading 35.04 of the Tariff as claimed by the Revenue.

(2.) WE heard Shri A.S. Bedi, Learned S.D.R, and Sh. J. Vellapally, Sr. Advocate. We observe that both the Deputy Commissioner and the Commissioner (Appeals) have classified the impugned produce under heading 23.01 of the Tariff. The rival heading reads as under :

(3.) THE Deputy Commissioner has also referred to the HSN Explanatory Notes to Chapter 23 according to which residue of starch manufactured and similar residue from maize (corn) consists largely of fibrous and protein substances usually presented in the form of pellets of meal but occasionally in cake. They are used for animal fodder or as fertilizers and some of the these residue are used in the production of cultures for the manufacture of anti biotics. The respondents had contended before the Adjudicating Authority that the impugned product is used for cattle feed and poultry feed which has not been controverter by the Revenue before us. The Adjudicating Authority also, after referring certificates received from various major customers of the respondents, cam to the conclusion that in the trade parlance also the impugned product is known as gluten meal and is specifically put to use by the customers in the fodder, cattle feed and poultry feed. Finally, the Adjudicating Authority had also examined that peptones covered by heading 35.04 are obtained by hydrolysis or enzymation of proteins by action of pepsin, papain, pancreatin etc. No such process in involved in the manufacture of the impugned product. The Commissioner (Appeals) has also rejected the appeal filed by the Revenue observing that mere presence of protein in sufficient quantity in the gluten meal does not taken it out of the preview of Chapter 23. In the appeal before us, the main contention of the Revenue is that the product contains more than 60% protein and as such is a type of protein concentrate and it should be classified as protein in terms of HSN Explanatory Notes. We observe that this point has been considered by the lower authorities and is not favored with them. The Revenue has not brought any material to support that the impugned product is not residue or waste of food industries. We, therefore, find no reason to interfere with the Order and reject the appeal filed by the Revenue.