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2012 (12) TMI 831 - CESTAT BANGALOREClassification of sugarfree chewing gum – Sub-heading 2106 90 99 v/s 2106 90 91 - Held that:- The products in question are "food preparations not elsewhere specified or included" (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, 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.
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