ORDER : 1. The respondents herein are engaged in the manufacture of processed, preserved and frozen fish, prawns and various kinds of breaded fish pellets and other foods preparation of meat and vegetables. Food preparation of meat and vegetables include chicken patty, breaded fish finger etc. which fall under Central Excise Tariff Heading No. 1601.10 and 2001.10 of the schedule to Central Excise Tariff Act, 1985. 2. The said product was marketed in individual unit container under the brand name SUMERU. Department's case is that the items in question are chargeable to duty under Chapter 16 of the Central Excise Tariff Act, 1985. 3. On the basis of the intelligence that the respondent herein had indulged in evasion of Central Excise duty by manufacturing and clearing excisable goods without payment of duty, the officers searched the manufacturing premises of the respondent on 24.06.2003 and seized certain documents. Four representative samples from each seven varieties of fish, prawns, and other prepared food items packed in polythene pouches with brand name SUMERU were drawn from the factory. Expert Inspection Agency vide its test report dated 08.09.2003 had confirmed the presence of ploy phosphate in all seven varieties. Customs House vide its report dated 25.09.2003 also confirmed the presence of phosphate and chloride in all the samples. 4. Accordingly, show cause notice dated 09.07.2004 was issued to the respondents which was confirmed by the Commissioner vide its order dated 31.08.2005 and held that goods under the Brand name SUMERU shall be classifiable under Tariff Sub-Heading 1601.10 and confirmed the demand of Rs. 42,30,909/-. 5. Aggrieved thereby, the respondent filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as ‘the Tribunal’). The Tribunal vide its final order dated 17.10.2006 while allowing the appeal of the respondents held that on the basis of expert evidence and opinion, the products have not gone under any process. Therefore, the said products should be classified under Chapter 3 and not under Chapter 16. Emphasis was laid on the difference between two expression ‘preserve’ and ‘prepared’ i.e. prepare is more towards edible and preserve may not related to edible. 6. The aforesaid order of the Tribunal has been challenged by the Department in the form of present appeal. Therefore, the said products should be classified under Chapter 3 and not under Chapter 16. Emphasis was laid on the difference between two expression ‘preserve’ and ‘prepared’ i.e. prepare is more towards edible and preserve may not related to edible. 6. The aforesaid order of the Tribunal has been challenged by the Department in the form of present appeal. On going through the impugned order, we find that the conclusion is primarily rested on opinion of the expert bodies which include the Director of Marine Products Export Development Authority as well as the Director of Central Institute of Fisheries Technology. It is also pertinent to mention that the Department did not even cross-examine the experts who had given the opinion in question on the basis of which goods have rightly been classified under Chapter 3 by the Tribunal. We, thus, do not find any merit in these appeals. 7. The appeals are, accordingly, dismissed.