P.K. Das, Member (J) - (1.)THESE appeals are arising out of common order and, therefore, all are being taken up together for disposal.
(2.)THE dispute relates to classification of "Chaman Bahar Powder" and "Pono Cream" both under sub -heading No. 2107.91 without benefit of Notification No. 2/94 -CE dated 1.3.94 as proposed by Revenue and confirmed by Original Authority. The respondents claimed both under sub -heading No. 2001.10 eligible for exemption notification No. 2/94 -CE and allowed by Commissioner (Appeals), who set aside the Adjudication Orders and allowed the appeals filed by the respondents. Hence, the Revenue filed these appeals.
Ld. DR on behalf of the Revenue reiterates the grounds of Appeals. He submits that Heading 20.01 indicates "preparation of vegetables, fruits, nuts and other parts of plants". He submits that the product "Chaman Bahar Powder" is processed out of 48 ingredients and only 2 items namely Bel and Amla are fruits and vegetables. He further submits that the other items - Ponocream is composed of Kusum Powder, Mulethi Powder, Menthol, Aniced Oil, Camphor, etc. and other perfumery items. He also submits that both the products are in the nature of Pan flavouring material/khusboo exclusively meant to be taken with pan. He submits that these items cannot be said to be preparation of vegetables, fruits or parts of plants. He also submits that the respondents used Betel nuts in both products prior to issue of exemption notification and in order to avail the exemption benefit, they have changed the composition of the product. He relied upon the decision of the Tribunal in the case of Mukh Shudhi Foods Pvt. Ltd. v. CCE, Indore reported in . He submits that the Original Authority rightly denied the exemption benefit and classified under Chapter 21 as the items are nothing but in the nature of pan masala.

(3.)LD . Advocate on behalf of the respondents reiterates the findings of the Commissioner (Appeals). He drew the attention of the Bench to the relevant portion of the reply to the show cause notice. He submits that the products are preparation of vegetables, fruits and kind of plants. He also submits that they have not used lime, katha or supari in the said products and, therefore, it cannot be in the nature of pan masala. He also submits that the Commissioner (Appeals) passed the order following the decision of the Tribunal. It is submitted that the Commissioner (Appeals) also took reliance of the Order dated 24.2.2000 passed by the Dy. Commissioner, Division -II, Noida in the case of D.S.M. Foods Ltd. where "Mouth Freshener" classified in sub -heading No. 2001.10 and excluded from sub -heading No. 2108.99. He submits that the Revenue filed appeal before the Commissioner (Appeals) against the order of the Dy. Commissioner in the case of DSM Fruits Ltd., which was rejected. Again, Revenue filed appeals before the Tribunal, which was rejected by the Tribunal by Final Order No. 851 -853 -08 EX dated 3.11.2008 in the case of CCE, Noida v. D.S.M. Fruits Ltd.