Per Shri V.P. Gulati :

The issue in the appeal relates to the classification of the goods which have been described as ice cream cones. The learned lower authority has held the goods to be assessable under Tariff Heading 1905.90 while the revenue seeks the classification of the same under Tariff Heading 1905.11. For proper appreciation of the issues the Tariff Heading 1905 is reproduced below for convenience of reference:

2. The learned JDR for the department has urged that the scope of the term waffels and wafers figuring under Tariff Heading 19.05 has been amplified in the HSN as under:

Waffles and Wafers, which are light fine bakers' wares baked between patterned metal plates. This category also includes thin waffle products, which may be rolled, waffles consisting of a tasty filling sandwiched between two or more layers of thin waffle pastry and products made by extruding waffle dough through a special machine (ice cream cornets, for example). The water content must be 10% or less by weight of the finished product. Waffles may also be chocolate-covered. Wafers are products similar to waffles.

3. He has pleaded that ice cream cones in terms of the above are squarely covered under the description waffels and wafers. He has also in this connection referred to the term cornet which has been defined in the Oxford Dictionary as under:

Cornet - Conically-rolled piece of paper for groceries etc.; cone-shaped wafer for holding ice-cream.

He has pleaded that the item covers cones whether used for ice cream. His plea is that since the Central Excise Tariff is designed on the scheme of the HSN, the scope of the coverage under a particular item would be as set out in the HSN. In this connection he has pressed into service the ratio of the decision of the Hon'ble Supreme Court in the case of Woodcrafts reported in 1995 (77) ELT 29 = 1995 (7) RLT 661 (S.C.). In para 18 the Hon'ble Supreme Court has held as under :

We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI Glossary, which has a different purpose, cannot, in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expression "similar laminated wood" in the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention.

4. The learned Advocate for the respondents has pleaded that in the trade waffels and wafers are considered as items distinct from ice cream cones and these are in the nature of flat products and, therefore, cones will fall under the category of other bakery products falling under Tariff Heading 1905.90. In this connection he has referred us to the clarification by the DGTD, wherein they have been advised, the classification of ice cream cones will be under 1905.90 and also a letter from the manufacturers of the machinery, who hav