Per S.S. Kang : The Revenue filed this appeal against the order passed by the Commissioner (Appeals) whereby Commissioner (Appeals) held that product Appy Fizz is classifiable under sub heading No. 22029020 of Central Excise Tariff on the ground that the product is fruit juice based drink.

2. The Revenue challenged the order on the ground that the same is classifiable under sub-heading No. 22021010 of Central Excise Tariff as aerated water.

3. The contention of the Revenue is that the Commissioner (Appeals) has ignored the chemical examiner's report and Ministry of Food and Processing Industries opinion and which was on record and held in favour of the respondents. The contention of the Revenue is that since the product in question is aerated, therefore, is classifiable as flavoured aerated water. The Revenue also relied upon the HSN Explanatory Notes in support of their claim.

4. The contention of the respondent is that as per the certificate given by Ministry of Food and Processing Industries, New Delhi the product in question contains 23% of apple juice. As the product in question is juice based drink, therefore, rightly classifiable under sub-heading No. 22029020 of the Tariff. The respondents also relied upon the chemical examiner's report to submit that there are 13.7% by weight are soluble solids in the product. The respondent also relied upon the text to Prevention of Food Adulteration Rules, 1955 to submit that fruit beverage or fruit drink must contain total soluble solids not less than 10%.

5. For ready reference relevant sub-heading is reproduced below:-

6. The Revenue relied upon HSN Explanatory Notes of Chapter 22. We find that our tariff is not fully aligned with the HSN Explanatory Notes. In the HSN Explanatory Notices there are two sub-headings under Heading No. 2202 one is "water including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured" and second is in respect of others. Whereas the Central Excise Tariff under Sub-heading No. 2202 there are specific headings in respect of soya milk, drinks etc. As per the Central Excise Tariff, the waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured are classifiable under sub-heading No. 2202.10. The drinks based on fruit juice are specifically classifiable under Heading No. 22029020 of the Tariff. In the present case, there is no dispute regarding the contents of the product. Revenue is not disputing the certificate given by the Ministry of Food and Processing Industries, New Delhi rather they are relying on it in the ground of appeal, and as per the certificate, the product in question contains 23% of apple juice. Therefore, we find no infirmity in the impugned order. The appeal is dismissed.