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, THEREFORE, SUBMITTED THAT THE ADDITION OF STABILISING AGENT IN, WHAT WAS ESSENTIALLY A DAIRY PRODUCT, DID NOT SERVE TO TAKE THOSE PRODUCTS OUT OF TARIFF HEADING 04.04. FINALLY, IT IS SUBMITTED THAT THE HSN, IN RESPECT OF A SIMILAR TARIFF HEADING, HAD CLARIFIED THAT THE ADDITION OF VARIOUS OTHER INGREDIENTS INCLUDING STABILISING AGENT WOULD NOT SERVE TO MAKE THE PRODUCT ANYTHING OTHER THAN THE DAIRY PRODUCTS. THAT THE HSN SHOULD BE RESORTED TO AS PRACTICABLE UNLESS THERE WERE COMPELLING REASONS TO THE CONTRARY HAS BEEN LAID DOWN BY THIS COURT IN THE DECISIONS IN CCE V. WOOD CRAFT PRODUCTS LTD.1 AND CCE V. BAKELITE HYLAM LTD.2 IT IS NOT NECESSARY TO CONSIDER THE OTHER ARGUMENTS RAISED BY THE APPELLANTS.

3. THE TRIBUNAL DISMISSED THE APPELLANTS APPEAL FROM THE ORDER OF THE COMMISSIONER OF CENTRAL EXCISE. THE TRIBUNAL HAS NOT ADDRESSED ITSELF AT ALL TO THE VARIOUS ARGUMENTS RAISED BY THE APPELLANT AND HAS MERELY RECORDED THAT "BEFORE ARRIVING AT THE CONCLUSION OF CLASSIFICATION, THE COMMISSIONER HAS CONSIDERED ALL THE POINTS RAISED BY THE LEARNED COUNSEL BEFORE THE TRIBUNAL AND, AS SUCH, WE DO NOT FIND ANY INFIRMITY IN THE ORDER". THIS IS AN INAPPROPRIATE METHOD OF DISPOSING OF THE APPEAL BY THE TRIBUNAL PARTICULARLY WHEN A TRIBUNAL IS THE FORUM WHICH IS THE ULTIMATE FACT-FINDING FORUM.

THEREFORE, WITHOUT DECIDING THE ISSUES RAISED BY THE APPELLANT WE REMAND THE MATTER BACK TO THE TRIBUNAL FOR THE PURPOSE OF DISPOSING OF THE SAME ON MERITS. THE TRIBUNAL IS DIRECTED TO DISPOSE OF THE MATTER AS FAR AS POSSIBLE PREFERABLY WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF THE RECEIPT OF THIS ORDER. WE DISPOSE OF THE APPEAL BY SETTING ASIDE THE ORDER OF THE TRIBUNAL INSOFAR AS IT PERTAINS TO THE DETERMINATION OF THE CLASSIFICATION OF THE APPELLANTS PRODUCT.

4. THERE SHALL BE NO ORDER AS TO COSTS.

5. THE REVENUE HAS PREFERRED AN APPEAL FROM THE ORDER OF THE TRIBUNAL SETTING ASIDE THE IMPOSITION OF PENALTY UNDER RULE 173-Q OF THE CENTRAL EXCISE RULES, 1944. THE TRIBUNAL HAS SET ASIDE THE ORDER OF THE COMMISSIONER ON THE GROUND THAT NEITHER THE SHOW-CAUSE NOTICE NOR THE ORDER OF THE COMMISSIONER SPECIFIED WHICH PARTICULAR CLAUSE OF RULE 173-Q HAD BEEN ALLEGEDLY CONTRAVENED BY THE APPELLANT. WE ARE OF THE VIEW THAT THE FINDING OF THE TRIBUNAL IS CORRECT. RULE 173-Q CONTAINS SIX CLAUSES, THE CONTENTS OF WHICH ARE NOT SAME. IT WAS, THEREFORE, NECESSARY FOR THE ASSESSEE TO BE PUT ON NOTICE AS TO THE EXACT NATURE OF CONTRAVENTION FOR WHICH THE ASSESSEE WAS LIABLE UNDER THE PROVISIONS OF RULE 173-Q. THIS NOT HAVING BEEN DONE, THE TRIBUNALS FINDING CANNOT BE FAULTED. THE APPEAL IS, ACCORDINGLY, DISMISSED WITH NO ORDER AS TO COSTS.