TMI Blog2012 (12) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... classified under Heading 2106 of the CETA Schedule. However, the HSN Explanatory Notes appear to be of no aid to sub-classification of the goods, therefore, classification of the goods as “diabetic foods” must be based on evidence of the chewing gums having been medically prescribed as “diabetic foods” and marketed as “diabetic foods”. The Revenue whose burden it was to gather such evidence to justify classification of the chewing gums as diabetic foods under S.H. 2106 90 91 failed to do so. On the contrary the assessee has been able to show that the subject products were not marketed as diabetic foods, thus the “orbit” chewing gums were rightly classified under the residuary sub-heading 2106 90 99 - in favour of assessee. - E/289 & 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patients and that the description "sugarfree" shown on the label of the product purported to indicate its low calorific value and thereby to show that it was unsuitable for consumption by children. Even though, on account of its negligible sugar content, the chewing gum could be used by diabetic people, it was not an item prescribed as diabetic food. The expression "diabetic food" was particularly used to indicate foods which were marketed and sold as special foods meant for people suffering from diabetes. The product in question was not such an item and hence not classifiable under SH 2106 90 91. Per contra , the learned Addl. submitted that, for the subject goods, diabetic foods was more specific description and, hence, the goods in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " (Heading 21.06). Explanatory Notes to HSN Heading 21.06 also justify this classification. As per these notes, Heading 21.06 includes, inter alia , "Sweets, gums and the like (for diabetics in particular) containing synthetic sweetening agents (Eg: Sorbitol) instead of sugar . Admittedly, the subject products are gums containing synthetic sweetening agents instead of sugar. Therefore they have been rightly classified under Heading 2106 of the CETA Schedule. However, the HSN Explanatory Notes appear to be of no aid to sub-classification of the goods. To our mind, therefore, classification of the goods as diabetic foods must be based on evidence of the chewing gums having been medically prescribed as diabetic foods and marketed as diabe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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