- (1.) Civil Appeal Nos. 4539-4540 of 2005: The dispute which arises in the present appeals pertains to classification of the following products of the Respondent: "1. Chekkers Choco 40 P 2. Chekkers Fly Choco 3. Chekkers Choco 640 P and 4. Chekkers Choco ATC" The two entries which are involved are both in Chapter Heading 19.05 under the sub-heads "Waffles and wafers". Whereas the Revenue wants the aforesaid products to be covered by Entry 1905.31 which is "Coated with chocolate or containing chocolate", the case of the Assessee is that it would come in the residual sub-category "Other" which is 1905.90. For better understanding of the aforesaid dispute, we reproduce Chapter Heading 19.05 with its sub-heads as under:
(2.) From the aforesaid narration it becomes clear that it is not in dispute that the products are waffles and wafers. In fact, to put it precisely, it is known as waffles and wafers. It is also not in dispute that the aforesaid products are not coated with chocolate. Therefore, the only dispute is as to whether these products contains chocolate or not. It may be noticed that out of all the products under Chapter Heading 19.05, viz., biscuits, cakes and pastries, or waffles and wafers, some contains cocoa, as is clear from the description contained in the main Heading and if only cocoa is added or is contained in these products, that would not make it chocolate. Thus, there has to be a difference between cocoa and the chocolate that is made out of cocoa.
(3.) We find from the impugned order [: 2005 (183) E.L.T. 257 (Tribunal)] of the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') that CESTAT has not gone at all into the aforesaid aspect, viz., as to whether the product contains only cocoa or it contains chocolate. We may record that it is not in dispute that there is either cocoa or chocolate which is sandwiched between the two wafers. Thus, it was incumbent upon the CESTAT to see that the said ingredient is cocoa simplicitor or it is chocolate.;