Cadbury’s ‘Perk’ Products Are ‘Wafer Biscuits’, Not Chocolates, Qualifies For Concessional Duty: CESTAT
The New Delhi Bench of Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has said that ‘perk’ merchandise are ‘wafer biscuits’, not sweets and are entitled to the advantage of the exemption notification.
Justice Dilip Gupta (President) and Hemambika R. Priya (Technical Member) have been addressing the difficulty of whether or not Perk, ULTA Perk, Perk Poppers and Wafer Uncoated Reject manufactured by the assessee are classifiable underneath Excise Tariff Merchandise 1905 32 11 of the Central Excise Tariff Act, 1985 or underneath ETI 1905 32 90.
In accordance to the assessee, the manufactured Merchandise are classifiable underneath ETI 1905 32 90 with responsibility @ price of 16%/12.5% in the course of the related interval. Serial No. 19 of Notification No. 3/2006-CE dated 01.03.2006 (for interval upto March 2012) and Serial No. 28 of Notification No. 12/2012-CE dated 17.03.2012 (for interval from March 2012) prescribed diminished price of responsibility of 8% on “Wafer Biscuits” labeled underneath ETI 1905 32 90.
The division shaped a view that the Merchandise manufactured by the assessee are classifiable underneath ETI 1905 32 11 as a substitute of ETI 1905 32 90.
Accordingly present trigger notices have been issued to the assessee for the interval from November 2006 to July 2017 alleging that the Merchandise manufactured by the assessee deserve classification underneath ETI 1905 3211 and would, due to this fact, not be eligible for diminished price of responsibility underneath the Exemption Notification.
The Principal Commissioner confirmed the demand of differential excise responsibility with curiosity and penalty.
The assessee submitted that “Wafer” is a sort of biscuit and “Wafer Biscuit” is nothing however a type of “wafer”. Due to this fact, references to “wafer” within the Excise Tariff is akin to reference to “wafer biscuit”. Whether it is in any other case established that “wafer biscuit” is classifiable underneath ETI 1905 32 90, the outline of “wafer biscuit” within the Exemption Notification will embrace all its types, together with the shape the place such “wafer biscuit” could also be coated with chocolate or might include chocolate.
It was argued that as there may be nothing within the description of Exemption Notification to exclude any specific type of wafer biscuits, all types of wafer biscuits might be eligible for exemption.
The division contended that the product Perk is wafer coated with chocolate and the opposite product Ulta Perk is wafer sandwiched with chocolate (wafer containing chocolate). The product Perk comprises wafer and chocolate together with different elements. Due to this fact, exemption supplied to “wafer biscuits” underneath Exemption Notification, in any case will not be relevant to the merchandise Ulta perk, Perk, Perk popper which aren’t wafer biscuits.
The Tribunal said that for a product to qualify as “coated with chocolate or containing chocolate” underneath ETI 1905 32 11, the product ought to conform to the description of “communion wafers”. The Merchandise of the assessee neither have the traits of “communion wafers” nor they’re used within the Church for Eucharist goal.
The order handed by the Principal Commissioner accepts the rivalry of the assessee that “Perk” is a “wafer biscuit” and never a chocolate as this truth was not disputed by the division, noticed the bench.
The Tribunal additional opined that “when the Merchandise are “wafer biscuits” and it has been discovered that the classification of the Merchandise could be underneath ETI 1905 32 90, the Merchandise of the assessee would clearly be entitled to the advantage of the Exemption Notification.”
The bench held that the Merchandise of the assessee would fall underneath ETI 1905 32 90 and could be entitled to diminished price of excise responsibility underneath the Exemption Notification.
In view of the above, the Tribunal allowed the attraction.
Case Title: M/s. Mondelez India Meals Pvt. Ltd. v. The Commissioner of CGST & Central Excise
Case Quantity: Excise Enchantment No. 50720 of 2020
Counsel for Appellant/ Assessee: V. Lakshmikumaran, Sukriti Das and Mehak Mehra
Counsel for Respondent/ Division: Sanjay Jain
