TMI Blog2021 (8) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... the packets of all the above products-Category : Mix Flour has been printed on the packets and the detailed procedure recipe is printed on back side of the packets. The stand is in compliance and consonance with the case law COMMISSIONER OF C. EX., AHMEDABAD VERSUS RM FOODS [ 2009 (8) TMI 463 - CESTAT, AHMEDABAD] wherein Hon ble CESTAT held that the products (Gota Mix, Khaman Mix, Dal Wada Mix etc.) were entitled to benefit of Sl. No. 28 of Notification No. 3/2006-Central Excise. Admissibility of Sl. No. 28 of Notification No. 3/2006-Central Excise to the Instant Food Mixes (Gota Mix, Khaman Mix, Dal Wada Mix etc.), the fact that in the said Sl. No. 28, the description of goods mentioned against Chapter Heading 2106 included Instant Food Mixes such as Pongal mix, Vadai mix, Pacoda mix, Payasam mix, Gulab Jamun mix, Rava Dosa mix, Idli mix, Dosa mix, Murruku mix, and Kesari mix, supports our view that various Instant Food Mixes (Instant Mix / Ready Mix Flour) being supplied by the applicant are classifiable under HSN 2106. The Central excise Tariff Heading 2106 was based on HSN and applies to subject matter. Food preparations not elsewhere specified or included falling u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .45-48 dated 27-5-11 of Vitagreen products pvt. ltd., and Determination Order No.2013/D/197/2019 in the case of M.T.R. foods pvt.ltd. dated 20-12-13 wherein different varieties of flour i.e. Gota Flour, Khaman Flour, Dalwada Flour, Dahiwada Flour, Dhokla Flour, Idli Flour and Dosa Flour have been considered to be flours and held to be falling under Entry 12 in Schedule I to the GVAT Act under Flour of Cereal and Pulses ; that inspite of there being a change in law i.e. the time when that determination order was passed the GVAT Act was prevailing and currently GST Act is in force but if there is no substantial change in the schedule entries then the classification and interpretation adopted in the earlier law needs to be followed; that the applicant relies upon the decision of the Hon ble High Court of Gujarat in the case of West Coast Waterbase Pvt.Ltd. vs. State of Gujarat wherein the said principal has been laid down by the Hon ble High Court that when there is no material change in the entries, the classification adopted in earlier law should continue to prevail and be accepted; that considering the overall facts and circumstances of the case vis-a-vis the entries in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, mix flour cannot be consumed as it is, but it is required to follow certain cooking procedures before consumption. Hence the product manufactured and sold by the applicant is not 'ready to eat' but can be said as 'ready to cook'. 5. The applicant further submits that the manufacturing process of all the mix flours is more or less similar with necessary changes in type of flour and composition and proportion of other ingredients and in any case the main ingredient remains flour which may be either rice flour, grams flour, paddy flour etc. The manufacturing process is submitted as follows: {i} Ready to mix/Instant mix flour contains mainly flours of grains and/ or pulses like bengal gram dal, gram dal, udad dal, chana dal, Moong dal, Paddy, Sago, wheat granule, rice etc. where the content of 'flour' is having major weightage. Most of the mixed flour products have 'flour' content more than 70-90%. {ii} Powder of spices like pepper, red chilli, coriander, ajma, sounf, jeera, turmeric, tamarind, iodised salt, sugar, mustard, lemon, condiments, citric acid, sodium bicorbonate, turmeric, cumin, clove, curry leaves, asafoetida, baciliyam, bla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sodium bicarbonate, Citric acid (E 330) 6 Dhokala Mix Flour Rice Flour, Split Bengal Gram Flour, Split Black Gram Flour, Iodised Salt, Citric Acid (E 330) Sodium bicarbonate 7 Dahiwada Mix flour Split Black gram flour, Garbanzo beans flour, Iodised salt, Citric Acid (E 330) Sodium bicarbonate 8 Dosa Mix Flour Rice flour, Split Black gram flour, Refined wheat flour, Iodised salt, Citric Acid (E 330), Sodium bicarbonate 9 Methi Gota Mix Flour Split Bengal gram Flour, Sugar, Wheat flour, Semolina, Iodised salt, Dried Fenugreek leaves, Coriander seed, Red chilli powder, Citric acid (E 330) , Sodium bicarbonate , Turmeric Powder, Black pepper, Bishop's weed seed, Asafoetida , Garam masala powder 10 Handavo Mix Flour Rice flour, Split Bengal gram flour, Split black gram flour, Wheat flour, Iodised salt, Sodium bicarbonate, Citric Acid (E 330), Red chilli powder, Turmeric powder Asafoetida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available [other than those where any actionable claim or any enforceable right in respect of such brand name has been voluntarily foregone, subject to the conditions as in the ANNEXURE]. 5.5 The applicant further submits that content of pulse flour is considerable and as per the common parlance test, said products are known as instant mix flour in the market and taking into consideration the process of preparation of instant mix flour and proportion of ingredients used in preparation, it is evident that flour of grains and pulses are the major components of the said finished products; that the said grains and pulses shall very well cover under heading 0713 having brief description Dried Leguminous vegetables and accordingly, instant mixed flour made from such dried leguminous vegetables are eligible to be classified under heading 1106 having brief description Meal and powder of the dried leguminous vegetables of heading 0713 and taxable accordingly. The applicant has produced the percentage ratio of the grains and pulses in the products which shall make it clear that ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dahiwada Mix Flour 0 65 29 94 0 0 0 0 0 94 6 8. Dosa Mix Flour 0 20 0 20 0 59 16 0 75 95 5 9. Methi Got a Mix flour 55 0 0 55 10 0 10 0 20 75 25 10. Handavo Mix Flour 25 8 0 33 0 47 11 0 58 91 9 11. RavaIdli Mix Flour 2 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct of the shelf; that the applicant could supply spices and condiments in separate sachets and could sell pure flour but for the ease and convenience of customer and to relieve the customer from going through the process of mixing of those spices and condiments with the flour, the applicant does that job and mixes flour with spices and condiments in such proportion to get best taste; that customer purchases Instant Flour Mixes of the applicant exactly in the similar manner it may purchase other flours from a flour mill; that flours available at the flour mill are flours without the spices and condiments mixed with it while the flours of the applicant are mixed with spices and condiments; that except this, there is no other difference in the flours available at flour mill and flours manufactured and sold by the applicant. So, mere mixing of flour with spices and condiments does not change basic character and form of flour so as to consider it as an entirely different product i.e. The FLOUR remains FLOUR. 7.1 The applicant is further supported in its submission by Circular No. 80/54/2018-GST dated 31.12.2018 issued by the Central Board of Indirect Taxes and Customs wherein the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and taste, the applicant is bound to carry out the test results first in laboratory and thereafter only the grains, pulses and other ingredients are moved forward for processing and mixing, hence there remains no doubt about the authenticity of the percentage ratio report. 7.4 The applicant submits that their products are ready to cook and not ready to eat and after the products are purchased by the customer, some processes need to be carried out and thereafter it is cooked and made ready for consumption and that it can be said that applicant is selling it in raw form which needs further process of cooking to make it consumable; that as per their understanding, the products in question i.e. Flours Mix of different types that are in neither cooked nor ready to eat condition seems squarely eligible to be classified under Chapter Tariff Heading 1106; that Chapter Tariff Heading 2106 is a residuary entry meaning thereby that it is a general entry which includes the products which do not fall anywhere else in any other Chapter Tariff Heading; that effective 2005, India has adopted 8 digit classification coding and the manner of determining classification has undergone comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h means that meaning of a word is to be judged by the company it keeps and applying the said principle while classifying the products of the present applicant, by no means it can be said that it is eligible to be classified under heading 2106 because by no stretch of imagination the products of the applicant can be equated with either Misthan or Mithai or Namkeen or Chabena or Bhujia ; that their products are not ready to eat products for human consumption and thus, heading 2106 90 99 even as general entry is not capable of including the products of the applicant and 1106 is the only entry and most specific entry where the products manufactured by the applicant would fall; that in GST regime, the Customs Tariff has become relevant for the purpose of determination of classification for any supply of goods wherever the rate schedule is aligned with Customs Tariff. From perusal of Customs Tariff Act, 1975 read with interpretation Rules judicial precedent, we understand that the classification in Customs is driven by the ingredients used in the products. Predominant content in the product would help in determining appropriate classification; that in the case of Manilal Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is very well settled position of law that when the issue is of interpretation of entries and classification of a product, the entry most beneficial to the tax payer has to be preferred and in the present case of the applicant, the entries most beneficial to the applicant are 1102 and 1106 as the case may be and thus relying upon the said principle, the General Residuary Entry 2106 must be avoided and should make way for the entries 1102 and 1106 which are most beneficial to applicant; that in this regard, applicant gains strong support from the decision of Honourable Supreme Court in the case of Commissioner of Central Excise, Bhopal Vs. Minwool Rock Fibers Ltd. 2012 (278) ELT 581 wherein Honourable Supreme Court has held that In case of classification, entry which is beneficial to the assessee requires to be applied. 8.3 The applicant has concluded his submission by stating that considering the overall facts and circumstances of the case vis- -vis the entries in question and the settled law on the subject, the applicant submits that MIX FLOURS of different varieties as stated above are eligible to be classified under the Tariff Heading No.1106 and thus attract G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illing the cereals of chapter 10) other than flours of wheat or meslin. Products of the milling of rye, barley, oats, maize (corn) (including whole cobs ground with or without their husks) grain sorghum, rice or buckwheat are classified in this heading as flours if they fulfil the requirements as to starch content and ash content set out in paragraph (A) of Chapter Note 2(see General Explanatory Note) and comply with the criterion of passage through a standard sieve as required by paragraph (B) of that Note. Flours of this heading may be improved by the addition of very small quantities of mineral phosphates, anti-oxidants, emulsifiers, vitamins or prepared baking powders (self raising flour). The heading also covers swelling (pregelatinised) flours which have been heattreated to pregelatinise the starch. They are used for making preparations of heading 19.01, bakery improvers or animal feeds or in certain industries such as the textile or paper industries or in metallurgy( for the preparation of foundry core binders). Flours which have been further processed or had other substances added with a view to their use as food preparations are excluded (generally heading 19.01). This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lour, 9% in Handvo Instant mix flour and 6% in Khichu Instant mix flour. It is also evident from the recipe submitted by the applicant that the Spices and other ingredients have been added to the flours with a view to their use as food preparations. As such, in view of the Explanatory Notes of the HSN, these products are excluded from the Chapter Heading 1102. 16. The applicant submits that in the alternative, without prejudice to any of the submissions above, the products of the applicant are equally eligible to be classified under Tariff heading 1106. Chapter Heading 1106 covers Flour, Meal and Powder of the dried leguminous vegetables of Heading 0713, of sago or of roots or tubers of Heading 0714 or of the products of Chapter 8 . Chapter Heading 1106 as per Customs Tariff: 1106 FLOUR, MEAL AND POWDER OF THE DRIED LEGUMINOUS VEGETABLES OF HEADING 0713, OF SAGO OR OF ROOTS OR TUBERS OF HEADING 0714 OR OF THE PRODUCTS OF CHAPTER 8: 1106 10 00- Of the dried leguminous vegetables of heading 0713 1106 20- Of sago or of roots or tubers of heading 0714: 1106 20 10--- Of sago 1106 20 20 --- Of manioc (cassava) 1106 20 90--- Of other roots and tuber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts, we find that this is not the case of addition of very small amounts of additives in subject products. We hold that the subject Circular is not applicable in present case as the said products are different from Sattu and have spices and ingredients in varying proportions as cited by the applicant and are in the nature of instant mix. Therefore, as per our findings, we are not inclined to admit CTH 1106 for said products 18. We note that HSN 2106 covers Food Preparations not elsewhere specified or included. The Explanatory Notes of HSN for Chapter Heading 2106 provides as follows :- Provided that they are not covered by any other heading of the Nomenclature, this heading covers : A) Preparations for use, either directly or after processing (such as cooking, dissolvingor boiling in water, milk, etc.), for human consumption. B) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rruku mix, and Kesari mix. 8% - 20. Though the issue involved in that case was regarding admissibility of Sl. No. 28 of Notification No. 3/2006-Central Excise to the Instant Food Mixes (Gota Mix, Khaman Mix, Dal Wada Mix etc.), the fact that in the said Sl. No. 28, the description of goods mentioned against Chapter Heading 2106 included Instant Food Mixes such as Pongal mix, Vadai mix, Pacoda mix, Payasam mix, Gulab Jamun mix, Rava Dosa mix, Idli mix, Dosa mix, Murruku mix, and Kesari mix, supports our view that various Instant Food Mixes (Instant Mix / Ready Mix Flour) being supplied by the applicant are classifiable under HSN 2106. The Central excise Tariff Heading 2106 was based on HSN and applies to subject matter. APPLICABLE RATE OF GOODS AND SERVICES TAX 21. The various Instant Mix/ Ready Mix Flour being supplied by the applicant classifiable under HSN 2106 and in precise subheading 2106 90. 21.1 Notification No. 1/2017-Central Tax (Rate) dated 28-6-17, as amended, entry at Sr. No. 23 of Schedule - III reads as follows - S.No. Chapter/ Heading/ Sub-heading/Tariff item ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
