ORDER :

The classification of the two products of the respondent-assessee is the issue which arises for consideration in the present appeal. These are milk shake mix and soft serve mix.

2. The Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT) has classified these products under Chapter sub-Heading 0404.90 accepting the contention of the respondent-assessee in this behalf. However, the endeavour of the appellant-Revenue is to have the same covered under Chapter sub-Heading 1901.19.

3. These two entries, viz., 04.04 and 19.01 reads as under :-

04.04 Other dairy produce, edible products of animal origin, not elsewhere specified or included

- Ghee:

0404.11 - Put up in unit containers and bearing a brand name.

0404.19 Other

0404.90 Other

019.01 Malt extract, food preparations of flour, meal, starch or malt extract, not containing cocoa or containing less than 40% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of heading Nos. 04.01 to 04.04, not containing cocoa or containing less than 5% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included.

Put up in unit containers :

01901.11 For instant use.

01901.19 Other

01901.91 Malt extract.

01901.92 Food preparations containing malt or malt extract or cocoa powder in any proportion.

01901.99 Other"

4. Admitted facts are that the aforesaid two items are meant for institutional sales only and not for retail sale. The product soft serve mix is maintained at a degree of 8-9 centigrade and milk shake is maintained at temperature of 30-40 degree centigrade. The process of manufacture of soft serve mix/ milk shake mix is the same as in the case of ice-cream except that the process of incorporation of air and freezing are not undertaken in the factory of the assessee. Otherwise all the basic ingredients required for manufacturing of ice-cream were available in the aforesaid produce and even the aging process at temperature is 0 to 4 degree centigrade takes place in the factory of the assessee. It is also an admitted fact that the ingredients of the products are milk to which sugar, glucose and milk powder are added.

5. On the aforesaid basis, we have to determine as to whether it falls in one or the other competing entries mentioned above.

6. Chapter Heading 04.04 deals with other dairy produce; edible products of animal origin not elsewhere specified or included. Thus, all the dairy produce other than those which are specified elsewhere (for example, ice cream is covered by chapter Heading 21) are covered by Chapter Heading 04.04. We would also like to mention here that Heading 04.01 which is the main heading gives the description of goods as :-

"04.01 Milk and Cream, concentrated or containing added sugar or other sweetening matter

- In or in relation to the manufacture of which any process is ordinarily carried on with the aid of power:

0401.11 Flavoured milk, whether sweetened or not, put up in Nil unit containers and ordinarily intended for sale

0401.12 Skimmed milk powder, specially prepared for feeding infants

0401.13 Milk powder, other than powder specially prepared for feeding infants, put up in unit containers and ordinarily intended for sale.

0401.14 Concentrated (condensed) milk, whether sweetened or not, put up in unit containers and ordinarily intended for sale.

0401.19 Other

0401.90 Other"

7. It is clear from the aforesaid that all the products of milk and cream would be covered by this Chapter Heading and the addition of sugar or other sweetener would not make any difference.

8. Since the products in question are the mix of milk as well as milk powder, as far as milk, viz., flavoured milk is concerned, it is covered by sub-Heading 0401.11 and, skimmed milk powder and milk powder are covered by 0401.12 and 0401.13 respectively. Since the products in question are the mixture of the two, assessee seeks to cover it under 0401.19, viz., 'Other'. From the descri