ORDER

1. THE QUESTION IN THIS APPEAL IS WHETHER THE PRODUCTS MANUFACTURED BY THE APPELLANT, NAMELY, "MILK SHAKE MIX", "SOFT SERVE MIX", "COFFEE CREAMER" AND "CREAM PACKED" ARE CLASSIFIABLE UNDER TARIFF HEADING 04.04 (AS CONTENDED BY THE APPELLANT) OF THE CENTRAL EXCISE TARIFF ACT OR TARIFF SUB HEADING 1901.19 (AS CONTENDED BY THE REVENUE). THE DEPARTMENT HAD DECIDED AGAINST THE APPELLANT ON THE GROUND THAT THE AFORESAID PRODUCTS OF THE APPELLANT CONTAINED STABILISING AGENTS. OUR ATTENTION HAS BEEN DRAWN BY THE APPELLANT TO THE FACT THAT IN ALL THE SAID PRODUCTS THE QUANTUM OF STABILISER WAS MINUTE. IT IS CONTENDED THAT THE PRODUCTS WERE BASICALLY MILK PRODUCTS OR OTHER DAIRY PRODUCTS. THE QUESTION OF THIS CLASSIFICATION IS OF SOME IMPORTANCE AS THE TARIFF PRESCRIBED FOR ITEMS WITHIN TARIFF HEADING 04.04 WAS AT THE RELEVANT TIME NIL, AND FOR ITEMS WITHIN TARIFF SUB-HEADING 1901.19 IT 9 WAS 16%.

2. THE ASSESSEE HAS ALSO SOUGHT TO BUTTRESS ITS CLAIM BY REFERRING TO CHAPTER NOTE 4 OF CHAPTER 4 OF THE SCHEDULE TO THE ACT AS WELL AS TO THE FACT THAT MANY ITEMS WHICH INCLUDED STABILISING AGENTS WERE NEVERTHELESS CLASSIFIED ACCORDING TO THE PREDOMINANT SUBSTANCES IN THE PRODUCT. IT IS, THERE