NESTLE INDIA LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal arises out of the Order-in-Original No. 13/Commissioner/GOA/CX/2007 dated 17/9/2007 (issued on 10/10/2007) passed by the Commissioner of Customs and Central Excise, Goa.

(2.) BRIEF facts of the case are that the appellant is engaged in the manufacture of Sugar Confectionery, Chocolates, Food Preparations containing Cocoa/Wafers & Waffles falling under Chapter 17, 18 & 19 of the Central Excise Tariff Act, 1985. One of the products manufactured by it is called "MILKYBAR CHOO". The ingredients used in the manufacture of this product as shown in the wrapper are sugar, liquid glucose, milk solids, golden syrup, partially hydrogenated vegetable oils, cocoa butter, emulsifier (soya lecithin), colour, wheat protein, synthetic food colour and added artificial flavouring substances. The wrapper describes it Nestle Milky bar Choo - soft chewing fudge with white chocolayer. It is seen that the chocolayer is nothing but white chocolate. It is also seen that the fudge in the subject goods as well as white chocolayer are made up of the same ingredients. The appellant was clearing this product as sugar confectionery not containing cocoa at a concessional rate of duty of 8% ad valorem vide Sl. No. 247 of Notification No. 6/2002 -CE dtd. 1/3/2002, as amended and Sl. No. 16 of Notification No. 3/2006 -CE dtd. 1/3/2006.

(3.) THE appellant contested the Show cause notice. Vide its reply dated 21/8/07, it was, inter -alia, contended that Milkybar Choo is not White Chocolate as known in the market as one of the ingredients of Milkybar Choo is hydrogenated Vegetable Oil which cannot be used as ingredient for White Chocolate in view of Rule 5 read with Sl. No. 25.03 of Appendix B of the Prevention of Food Adulteration Rules, 1955.