2000(10)LCX0200

IN THE CEGAT, WEST ZONAL BENCH, MUMBAI

S/Shri Gowri Shankar, Member (T) and J.N. Srinivasa Murthy, Member (J)

FAVOURITE FOOD PRODUCTS

Versus

COMMISSIONER OF C. EX., RAJKOT

Order No. 3553/2000-WZB/C-I, dated 9-10-2000 in Appeal No. E/4611/95-SB

Advocated By :   None, for the Appellant.

Shri T.D. Bodade, JDR, for the Respondent.

[Order per : Gowri Shankar, Member (T)]. - The question for consideration in this appeal is the classification of the goods described as “poha” manufactured by the appellant. The Collector whose order is impugned before us has held that these are processed foods classifiable under heading 19.04 of the tariff.

2. The appellant is absent and unrepresented despite notice. We therefore read the submissions made in the memorandum of appeal and heard the departmental representative.

3. The goods under consideration are 'poha' (or pauva) manufactured out of maize, rice and wheat. The notice issued to the appellant, which has been confirmed in the impugned order, proposed classification of the 'poha' under heading 19.04 on the ground that it was manufactured by swelling or roasting and was put up in container ordinarily intended for sale. It therefore contended that the ingredients for classification under this heading were fulfilled. It was the appellant's case that the manufacturing process does not involve of swelling or roasting of the goods and that therefore the goods are not so classifiable.

4. Heading 19.04 and its sub-heading at the relevant time read as follows :

“Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, corn flakes); cereals other than maize (corn), in grain form, pre-cooked or otherwise prepared;

5. The appellant contends that the first part of the heading will not apply for the reason that grains are not subjected to swelling or roasting. The other part will not apply because these are not ready to eat and therefore not prepared foods. The 'poha' manufactured by the appellant in question has to be subjected to cooking before it can be eaten.

6. The appellant claims that the grains are cooked in a pressure cooker and thereafter cooled. This cooked grain is pressed through rolls in order to render it flat.

7. We do not see how the claim that 'cooking', 'swelling', and ‘roasting’ have different meanings helps the appellant's case. It does not need any authority from a food technologist to say that when grains are cooked in a pressure cooker, they swell by absorption of water. It is a matter of common knowledge that food grains become larger after being boiled because they have absorbed water. The claim that there is a distinction between 'cooking' and 'swelling' in food technology is entirely unsupported by any evidence and in the face of it is unacceptable. Swelling by itself is not a method of cooking or processing to which foods are subjected. The reference to foods obtained by swelling is obviously a reference to the swelling that results when they are subjected to cooking.

8. The reference to pre-cooked foods in that heading is not to completely pre-cooked food, and in our view partially pre-cooked food is covered by the next part of the heading. The contention that ‘poha’ cannot be eaten without further frying does not appear to be correct, and is not in any case substantiated by evidence. The generality of the opinion of those who were present in court when we heard the matter is that 'poha' is often eaten by adding milk and sugar to it, although it can also be eaten after frying. In any event there is no requirement that for the goods to be classified under this heading, required to be cooked to such a degree that they must be capable of consumption without further cooking. The Explanatory Notes to the Harmonised System of Nomenclature, on which the heading in the tariff is based, indicate to the contrary. They explain that the group of products covered by this part of the heading ‘covers, for example, rice which has been pre-cooked either fully or partially .... Fully pre-cooked rice eats only to be soaked in water and brought to the boil before consumption while partially pre-cooked foods must be boiled for 5 to 12 minutes prior to consumption’.

9. The report of the chemical examiner on which reliance is placed by the appellant has not help at all. The report which reproduced in the letter of 27-8-74 of the Superintendent says, 'Each of the samples is in the form of flakes. The sample of maize flakes is harder to chew than the samples of other two products'. If this was the result of the chemical or other test to which the goods being subjected, it is absolutely irrelevant and is not at all helpful to the appellant or, indeed, to anyone else.

10. We are unable to agree that the extended period invoked in the notice to show cause contained in the proviso to Section 11AC could not be invoked. We are unable to see from this test report that we had referred to that there was confusion in anyone's mind regarding classification. The appellant has not demonstrated that it made any enquiries with the department, or shown evidence in support of its claim that it bona fide believed that the goods could be classified in the manner that it did. After all, as we have noted, this was not an issue that required deep scientific study or arcane knowledge. We accordingly confirm the demand for duty. We, however, reduce the penalty imposed on the firm of Rs. 10,000/- to Rs. 1,000/-, and set aside the penalty of Rs. 1,000/- imposed on Kailashbhai Kotak, its partner.

11. Appeal allowed in part.

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Equivalent 2001 (127) ELT 0131 (Tri. - Mum.)