1. This appeal arises out of and is directed against the Order-in-appeal No. 330-CE/CHG/89 dated 27-9-1989 passed by the Collector of Central Excise (Appeals), New Delhi.
2. The dispute in the present appeal is about the classification of 'fruit juice concentrate/pulp/tomato paste' manufactured by the appellants. The point to be decided is whether these items are classifiable under sub-heading 2001.10 as held by the Revenue or under sub-heading 2001.90 as claimed by the appellants.
3. The facts of the case in brief relating to this dispute are that the appellants are engaged in the manufacture of fruit juice concentrate/pulp and clearing their products in big 'barrels and cans' of 30 kgs., 56 kgs., or 66 kgs. capacity. The Assistant Collector has classified the goods in question under sub-heading 2001.10 considering such goods as sold in 'Unit containers', attracting duty @ 5% BED and 5% SED as against the appellants' claim for classification under sub-heading 2001.90 at 'Nil' rate of duty. This was confirmed in appeal by the Collector (Appeals). The contention of the appellants that contents cleared in big barrels of various sizes were neither pre-deter-mined quantity nor was such barrels considered as Unit Containers and the decision cited in the case of Collector of Central Excise, Chandigarh v. Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd. [1988 (34) ELT 160 (Tribunal)] was not accepted by the authorities below observing that decision pertains to old Central Excise Tariff and the present case is governed by the new Tariff and as per definition of Unit Container in Section Note to Section IV of the Central Excise Tariff Act, 1985. Aggrieved by these findings the appellants have come before us by way of this appeal.
4. Smt. Archana Wadhwa, learned Advocate, appearing for the appellants, submitted that classification of the goods in question which was duly approved under subheading 2001.90 was changed to 2001.10 by raising the demand of Rs. 4,13,235.36 for the period 8-4-88 to 23-8-88 was unjust and uncalled for. She stated that Department changed the classification based on definition of Unit Container in the Note to Section IV in Chapter 16 of the Central Excise Tariff Act. But the description of goods 'put up in unit containers and ordinarily intended for sale' in the Chapter 20 under sub-heading 2001.10 refers to product sold in a fixed and pre-determined quantity. In the case of Unit Container goods the customer has no choice but to purchase fixed quantity offered for sale or in multiple of the same with the container. Unit container used in sub-heading 2001.10 means a container in which prepared or preserved goods is intended to be sold by the manufacturer. Further it is inclusive of packing cost packed in different sizes and moreover these units or packs are to be labelled having details of brand name, net contents, ingredients, manufacturing date, price etc., as required under Food Product Order. She contended that product sold in the present case in big barrels cannot be termed as put up in unit containers and ordinarily intended for sale as expressed in subheading 2001.10. The products were not intended to be sold in a fixed pre-determined quantity but it was filled in varied quantities depending upon the capacity of barrels. Further the product was sold on the basis of weight and not on the basis of barrel and cost of the barrel was not included in the value of the product as it was durable and returnable. She said that the customer in the instant case is free to take any quantity of product unlike the Unit Container goods.
Further it was contended by her that requirements of sealing labelling and other ingredients under Food Product Order are not applicable to the present products. She stated that the issue in the present case is already covered by the decision of this Tribunal in the case of M/s.
HPMC cited Supra and the definition of Unit Container as such was dealt in detail in the said decision. Though the decision is prior to 1986 with reference to old Tariff Item No. 1B. The entry under 1B is similar to tariff entry under sub-heading 2001.10 of the new Tariff Act. She submitted that on identical issue in the case of MA. HPMC for further period under new Tariff Entry following the ratio of the decision the Department accepting that these products are classifiable under sub-heading 2001.90. She produced copy of the Order dated 16-2-1988 passed by the Assistant Collector of Central Excise, Chandigarh in the case of M/s. HPMC, Parwanoo, for the period 1-1-1987 to 31-5-1987.
5. Smt. Vijay Zutshi, learned S.D.R. for the Revenue while countering the arguments submitted that the ratio of the decision in the case of M/s. HPMC is not applicable to the present case because that case was proceeded to interpret term Unit Container based on the instructions issued by the Ministry while applying Tariff Entry 1B of the Act in the absence of definition of Unit Container. But in view of specific insertion of definition of Unit Container in the new Tariff Entry it cannot be viewed as instruction or trade advice. She said that there was only one Tariff Entry 1B which was taking case of all foods and in view of two separate distinctive tariffs in the new tariff the entries in the old Tariff 1B and new Tariff sub-heading 2001.10 are not part materia. Secondly she contended that as per definition though Unit Containers consisted of different sizes, quantity was pre-determined and known to the customers (Industrial consumers). She stated that in view of the facts supply of packing material and inclusion of cost of packing is immaterial for the purpose of classification as the products were sold in Unit Containers as they are correctly classifiable under sub-heading 2001.10 of the new tariff. She submitted that requirements under Food Products Order of sealing, labelling etc. are not applicable to all the products manufactured by the appellants.
6. In rejoinder, Smt. Archana Wadhwa submitted that labelling, sealing and mentioning of pre-determined quantity, are essential requirements under the provisions of Food Products Order in the case of Unit Container in which food products are sold. She said that there is no difference either in tariff entry or in the identical issue involved in the case of M/s. HPMC.7. We have considered the arguments advanced on both sides. Now the specific insertion of definition of Unit Container in the Section/Chapter Notes changes the complex of entry in the new tariff and whether there is any change in the wordings of the new tariff entry 2001.10 as against old Tariff 1B to alter or determine the classification are to be considered.
8. For the sake of convenience and reference the term 'Unit Container' expressed in Note to Section IV in Chapter 16, old Tariff Item No. 1B and new Tariff in Chapter 20 are reproduced as under :- PREPARED FOODSTUFFS; BEVERAGES AND VINEGAR; TOBACCO AND TOBACCO SUBSTITUTES. In this Section, the expression 'unit container' means a container whether large or small (for examples, tin, can, box, jar, bottle, bag or carton, drum, barrel or canister) designed to hold a pre-determined quantity or number.
PREPARATIONS OF MEAT, OF FISH OR OF CRUSTACEANS, MOLLUSCS OR OTHER AQUATIC INVERTEBRATES. "IB. Prepared or preserved foods put up in unit containers and ordinarily intended for sale, including preparations of vegetables, fruit, milk, cereals, flour, starch, birds, eggs, meat offals, animal blood, fish, crustaceans or molluscs, not elseshere specified." 1. This chapter covers only products which are prepared or preserved by processes other than merely chilled or frozen, or put in provisional preservative solutions, or dried, dehydrated or evaporated.
2. This chapter does not cover fruit, jellies, fruit pastes, sugar-coated almonds or the like in the form of sugar confectionery (Chapter 17) or chocolate confectionery (Chapter 18). Heading Sub-heading Description of goods No. No. 20.01 Preparations of vegetables, fruit, nuts or other parts of plants, including jams, fruit jellies, marmalades, fruit or nut puree and fruit or nut pastes, fruit juices and vegetable juices, whether or not containing added sugar or other sweetening matter 2001.10 -Put up in unit containers and ordinarily intended for sale 9. On going through the expression 'Unit Container' and Tariff entries of old 1B and new Tariff entries, we find that though the term 'Unit Container' was not inserted in the old tariff, still as such it was discussed in thread bare with reference to notification and instructions issued by the Ministry in the decision of M/s. HPMC.Further the description of tariff which was consolidated under old Tariff 1B has been distributed in the several Chapters under Section IV in the new Tariff Act. But in substance it remains the same. There is no material change in the description of tariff entry except bifurcation and distribution under different sub-headings in different chapters under the same umbrella of Section IV in the new tariff. The products in question in the present case particularly come under Chapter 20 of the new Tariff Act, wherein the Chapter 20 divided into two sub-headings 2001.10 and 2001.90 as against 1B and 68 of the old Tariff Act. The description under 2001.10, i.e., put up in unit containers and ordinarily intended for sale used in the same sense with the same wordings used in 1B of old Tariff. The definition of Unit container which was taken note of as per instructions in the old tariff has become part of the new tariff with specific insertion. The description under 1B of the old tariff as well as under new tariff 2001.10 relates to sales in unit containers in which alone the goods are ordinarily intended to be sold though the unit containers may be of any particular but uniform size. The primary requirement (for classification under Tariff Item 1B or under new tariff 2001.10) would be that sales should be of such quantities (of whatever size) packed in unit containers of that size. Whenever it was sold in packed in such unit containers the assessable value is inclusive of cost of contents and container. The expression 'unit containers' has been used with reference to prepared or preserved goods ordinarily intended for sale with pre-determined quantity. Normally these goods are in standard packs (it may be bottles, cans, cardboard, cartons etc.) and are prominently labelled to show the nature of the contents, the quantity, the date of manufacture and date of expiry (where applicable), the maker's name, the recommended maximum retail price etc. These aspects have been dealt in detail in the case of M/s. HPMC cited Supra and we hold that there is no difference either in the entry in between 1B of the old Tariff and new tariff 2001.10 or in the issue involved in both the cases. Following the ratio of the decision in the case of M/s. HPMC we hold that clearance in barrels does not amount to sale of the contents as put in a unit container. Accordingly, the goods in question are not classifiable under sub-heading 2001.10 but they are classifiable under sub-heading 2001.90.
10. In the result we set aside the impugned order and appeal is allowed.