TMI Blog2007 (3) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... E, Rajkot, reported in 2001 (127) E.L.T. 131, by which it was held that the goods known as "makai poha" were classifiable under Heading 19.04 of the Schedule to the Tariff Act. The Division Bench found itself unable to agree with the ratio of the said decision by observing that Heading 19.04, would cover prepared food ready for consumption. The Bench took note of the contention that "poha" in question was corn which had been boiled and flattened between rollers, but it was not ready for consumption food. 2.The learned Counsel appearing for the appellants contended before us that Heading 19.04 was applicable to the items which can be called prepared food obtained by swelling and roasting of cereals or cereal products. It was submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out from paragraph 8 of the said judgment that the contention that 'poha' cannot be eaten without further frying, was not correct and it was not substantiated by any evidence. The Division Bench did not pay any importance to the expert report, referred in paragraph 9 of the judgment, that the sample of maize flakes (makai poha) was harder to chew than the samples of other two products (corn flakes) as prepared for breakfast. 4.We have heard both the sides at length. After demonstrations were made in the Court, which we need not dilate upon, it became clear to one and all that the 'makai poha' which is the product in question cannot be eaten as a prepared food either by itself or even soaked. We would, however, base our conclusions on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts of cereals except flours and groats, meal and pellets and the residues of cereals. As regards rolled or flaked grain, the HSN lays down as under :- "This heading covers : Rolled or flaked grain (e.g., barely or oats), obtained by crushing or rolling the whole grain (whether or not dehulled) or kibbled grain or the products described in Items (2) and (3) below and in Items (2) to (5) of the Explanatory Note to heading 10.06. In this process, the grain is usually steam-heated or rolled between heated rollers breakfast foods of the 'corn flakes' type are cooked preparations ready for consumption and therefore fall, like similar cooked cereals, in heading 19.04". 5.2It will be seen from the provisions of Chapter 11, sub-heading 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the swelling or roasting of cereals or cereal products 1904.20 - Prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals 1904.90 - "Other" 6.1Though apparently the sub-headings are differently worded in the schedule and in the Explanatory Notes, it would appear that the rate of duty was prescribed only if the prepared foods covered under 19.04, were put up in unit containers. However, this will not detract from the analysis reflected in the Explanatory Notes, which throws light on the scope of the Heading 19.04. The expression "prepared food" obtained by swelling or roasting of cereals or cereal products which occurs both in the Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lavouring consisting of a mixture of vegetable oil, cheese, yeast extract, salt and monosodium glutamate. Similar products made from a dough and fried in vegetable oil are excluded (heading 19.05)." 6.2It will be noticed that under Heading 19.04 of the Schedule to the Tariff Act, both prepared foods obtained by swelling or roasting of cereals as well as cereals products such as corn flakes are covered. On a harmonious construction of these two, namely Headings 11.04 and 19.04, it would appear that if corn flakes are processed beyond the extent, which is provided in Chapter 11, so as to make them prepared foods, they would fall under Heading 19.04, but if they are processed only to the extent which is covered by Heading 11.04, namely till ..... X X X X Extracts X X X X X X X X Extracts X X X X
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