Full Judgment
2. None appeared for the Respondents. After hearing the ld. DR, Shri R.B. Pardeshi, we find that in terms of Serial No. 5 of Notification No. 12/90, the goods falling under Chapter Heading 2105.00 of the Central Excise Tariff Act, 1985 attract Nil rate of duty except the goods specified against Serial No. 4 of the said Notification. Serial No. 4 describes the goods as "Ice-Cream". The explanation attached to the Notification is to the effect that, for the purposes of this Notification "Ice-Cream" means those preparations, which are commonly known as Ice-Cream or Kulfi and in the preparation of which milk, cream or any other product of milk is used. The explanation in the Notification No. 4/93 is also to be same effect. The original as well as Appellate authority has extended the benefit of the Notification on the ground that milk used in the preparation is ranging from 6% to 9% whereas in terms of provisions of Prevention of Food Adulteration Act (PFA), the products containing less than 10% milk fat are not to be considered Ice-Cream. As such, it has been held by the below authority that inasmuch as the product contains less than 10% of milk fat they cannot be considered as Ice-Cream.
3. The Revenue's contention is that when there is an explanation attached to the Notification, it was not open to the authority to adopt the criteria as laid down in the PFA for concluding whether the products in question are Icecream or not. We, find force in the above contention of the Revenue that in case of availability of the definition in the Notification itself, it was not open to the lower authority to go to the other Act and adopt the definition from there.
However, we feel that the explanation as per the Notification lays down twin criteria definition for considering the product as Ice-Cream. The first condition is that the preparation must be commonly known as Ice-cream. It is recorded in the impugned order that apart from Ice-Cream manufactured by the respondents, they are also manufacturing other products like, Orange Fruity, Mango Kupple, and Raspberry etc, which are being cleared by them as "other than Ice-Cream" (emphasis provided). As such it becomes clear that the products are not known as IceCream. The Revenue has not produced any evidence before us to show that the above products in question are known as Ice-cream in the common parlour. As we are of the view that first criteria laid down in the explanation to the Notification is not satisfied, leading us to conclude that the goods in question are other than Ice-cream, in which case, Serial No. 5 of the Notification would be applicable. In view of the foregoing, we do not find any merit in the Revenue's appeals and reject the same.