- (1.) THE classification of the two products of the Respondent -assessee is the issue which arises for consideration in the present appeal. These are milk shake mix and soft serve mix. The Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT) has classified these products under Chapter sub -heading 0404.90 accepting the contention of the Respondent -assessee in this behalf, [2006 (202) E.L.T. 545 (Tribunal)]. However, the endeavour of the Appellant -Revenue is to have the same covered under Chapter sub -Heading 1901.19.
(2.) THESE two entries, viz., 04.04 and 19.01 reads as under: - - Admitted facts are that the aforesaid two items are meant for institutional sales only and not for retail sale. The product soft serve mix is maintained at a degree of 8 -9 centigrade and milk shake is maintained at temperature of 30 -40 degree centigrade. The process of manufacture of soft serve mix/milk shake mix is the same as in the case of ice -cream except that the process of incorporation of air and freezing are not undertaken in the factory of the assessee. Otherwise all the basic ingredients required for manufacturing of ice -cream were available in the aforesaid produce and even the aging process at temperature is 0 to 4 degree centigrade takes place in the factory of the assessee. It is also an admitted fact that the ingredients of the products are milk to which sugar, glucose and milk powder are added.
(3.) ON the aforesaid basis, we have to determine as to whether it falls in one or the other competing entries mentioned above.;